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AUTHENTICATED 
US. GOVERNMENT 
INFORMATION ^ 


MANAGEMENT OF CIVIL RIGHTS AT THE USDA 


HEARING 

BEFORE THE 

SUBCOMMITTEE ON GOA^RNMENT AIANAGEMENT, 
ORGANIZATION, AND PROCUREMENT 

OF THE 

COMMITTEE ON OA^RSIGHT 
AND GOA^RNMENT REFORM 

HOUSE OF REPRESENTATDH]S 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

MAY 14, 2008 

Serial No. 110-137 


Printed for the use of the Committee on Oversight and Government Reform 



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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 


HENRY A. WAXMAN, California, Chairman 
TOM DAVIS, Virginia 
DAN BURTON, Indiana 


EDOLPHUS TOWNS, New York 
PAUL E. KANJORSKI, Pennsylvania 
CAROLYN B. MALONEY, New York 
ELIJAH E. CUMMINGS, Maryland 
DENNIS J. KUCINICH, Ohio 
DANNY K. DAVIS, Illinois 
JOHN F. TIERNEY, Massachusetts 
WM. LACY CLAY, Missouri 
DIANE E. WATSON, California 
STEPHEN F. LYNCH, Massachusetts 
BRIAN HIGGINS, New York 
JOHN A. YARMUTH, Kentucky 
BRUCE L. BRALEY, Iowa 
ELEANOR HOLMES NORTON, District of 
Columbia 

BETTY McCOLLUM, Minnesota 
JIM COOPER, Tennessee 
CHRIS VAN HOLLEN, Maryland 
PAUL W. HODES, New Hampshire 
CHRISTOPHER S. MURPHY, Connecticut 
JOHN P. SARBANES, Maryland 
PETER WELCH, Vermont 


CHRISTOPHER SHAYS, Connecticut 

JOHN M. McHUGH, New York 

JOHN L. MICA, Florida 

MARK E. SOUDER, Indiana 

TODD RUSSELL PLATTS, Pennsylvania 

CHRIS CANNON, Utah 

JOHN J. DUNCAN, jR., Tennessee 

MICHAEL R. TURNER, Ohio 

DARRELL E. ISSA, California 

KENNY MARCHANT, Texas 

LYNN A. WESTMORELAND, Georgia 

PATRICK T. McHENRY, North Carolina 

VIRGINIA FOXX, North Carolina 

BRIAN P. BILBRAY, California 

BILL SALI, Idaho 

JIM JORDAN, Ohio 


Phil Schiliro, Chief of Staff 
Phil Barnett, Staff Director 
Earley Green, Chief Clerk 
Lawrence Halloran, Minority Staff Director 

Subcommittee on Government Management, Organization, and Procurement 

EDOLPHUS TOWNS, New York, Chairman 
PAUL E. KANJORSKI, Pennsylvania BRIAN P. BILBRAY, California 

CHRISTOPHER S. MURPHY, Connecticut TODD RUSSELL PLATTS, Pennsylvania, 
PETER WELCH, Vermont JOHN J. DUNCAN, jR., Tennessee 

CAROLYN B. MALONEY, New York 

Michael McCarthy, Staff Director 


(H) 



CONTENTS 


Page 

Hearing held on May 14, 2008 1 

Statement of: 

Boyd, John, president. National Black Farmers Association; Lupe Garcia, 
president, Hispanic Farmers and Ranchers of America, Inc.; Phil 
Givens, president, Phil Givens Co., representative of Native American 
Farmers; Lawrence Lucas, president, USDA Coalition of Minority Em- 
ployees; and Lesa Donnelly, advisor for Women’s Issues, USDA Coali- 
tion of Minority Employees 11 

Boyd, John 11 

Donnelly, Lesa 61 

Garcia, Lupe 19 

Givens, Phil 35 

Lucas, Lawrence 54 

McKay, Margo, Assistant Secretary for Civil Rights, U.S. Department 
of Agriculture; Phyllis Fong, Inspector General, U.S. Department of 
Agriculture; and Lisa Shames, Director, Agriculture and Food Safety, 

U.S. Government Accountability Office 79 

Fong, Phyllis 92 

McKay, Margo 79 

Shames, Lisa 104 

Letters, statements, etc., submitted for the record by: 

Bishop, Hon. Sanford D., Jr., a Representative in Congress from the 

State of Georgia, prepared statement of 7 

Boyd, John, president. National Black Farmers Association, prepared 

statement of 14 

Butterfield, Hon. G.K., a Representative in Congress from the State 

of North Carolina, prepared statement of 74 

Donnelly, Lesa, advisor for Women’s Issues, USDA Coalition of Minority 

Employees, prepared statement of 63 

Fong, Phyllis, Inspector General, U.S. Department of Agriculture, pre- 
pared statement of 94 

Garcia, Lupe, president, Hispanic Farmers and Ranchers of America, 

Inc., prepared statement of 21 

Givens, Phil, president, Phil Givens Co., representative of Native Amer- 
ican Farmers, prepared statement of 37 

Lucas, Lawrence, president, USDA Coalition of Minority Employees: 

Memorandum dated November 15, 2006 44 

Prepared statement of 56 

McKay, Margo, Assistant Secretary for Civil Rights, U.S. Department 

of Agriculture, prepared statement of 83 

Shames, Lisa, Director, Agriculture and Food Safety, U.S. Government 

Accountability Office, prepared statement of 106 

Towns, Hon. Edolphus, a Representative in Congress from the State 
of New York, prepared statement of 3 


(III) 




MANAGEMENT OF CIVIL RIGHTS AT THE 

USDA 


WEDNESDAY, MAY 14, 2008 

House of Representatives, 

Subcommittee on Government Management, 
Organization, and Procurement, 
Committee on Oversight and Government Reform, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 3:09 p.m., in room 
2154, Rayburn House Office Building, Hon. Edolphus Towns (chair- 
man of the subcommittee) presiding. 

Present: Representatives Towns and Bilbray. 

Also present: Representatives Bishop and Butterfield. 

Staff present: Michael McCarthy, staff director; William Jusino, 
professional staff member; Velvet Johnson, counsel; Kwane Drabo, 
clerk; Jim Moore, minority counsel; and Benjamin Chance and 
Chris Espinoza, minority professional staff members. 

Mr. Towns. Let me begin by first apologizing for the lateness, be- 
cause we had a little conflict in that the other hearing ran a little 
longer than they had expected, and so it delayed our hearing, as 
well. 

Also, I understand that we have some votes coming up, so we 
wanted to get started at least and get as far as possible before the 
votes, and then return back after the votes. 

We have other Members that will be joining us shortly. 

Let me begin by first thanking the witnesses for coming today. 

The hearing will come to order. 

We are here to consider an issue that is a cause for great alarm: 
the all-too-familiar issues of discrimination within the U.S. Depart- 
ment of Agriculture. Discrimination in the delivery of services to 
minorities and women farmers and treatment of minority employ- 
ees at USDA has been a longstanding problem, confirmed by offi- 
cial investigations and class action settlements. What was once en- 
visioned by President Lincoln as the people’s department, many 
now call the last plantation, and statistics seem to support this, 
and that is very troubling. 

Eor too long we have heard from minority farmers and workers 
at USDA that they have been shut out of Government loans and 
job promotions for decades because of the color of their skin. In 
fact, these problems have persisted for so long that Congress took 
action to reorganize USDA to emphasize the importance of Civil 
Rights. 

The 2002 farm bill established a position of Assistant Secretary 
of Civil Rights to provide overall leadership and coordination of all 

( 1 ) 



2 


Civil Rights programs across the Department of Agriculture. 
Today, 5 years later, we examine whether that reform has been ef- 
fective at eliminating discrimination at USDA. Unfortunately, the 
answer to that question appears to be no. 

Although Congress gave the Office of Civil Rights the resources, 
the autonomy, and authority to adequately help under-served farm- 
ers and minority employees, it remains unclear whether there has 
been any improvement in management of USDA Civil Rights pro- 
grams. Serious questions have been raised in the past year regard- 
ing how USDA tracks, processes, and remedies complaints brought 
by farmers and its own employees. 

Today we will hear from members of the farming community as 
they tell us the difficulties that they personally experience at 
USDA. We will also hear from representatives of USDA employees. 
These personal stories are supported by Government audit find- 
ings. Last year the USDA Inspector General reported that employ- 
ment complaints were not timely processed, there were no internal 
controls to ensure the accuracy and reliability of complaint data, 
and that complaint data in the Department’s computer files did not 
match up with the physical cases. GAO also reports that lengthy 
backlogs persist and that the USDA’s statistics are not reliable. 

Furthermore, there have been a series of incidents in the past 
few months that cause me to question the Department’s commit- 
ment to safeguarding Civil Rights. 

In September 2007, an e-mail circulated among employees of the 
Farm Service Agency criticizing congressional action to reopen a 
landmark Civil Rights case against USDA for discrimination and 
providing farm loans to Black farmers. More recently GAO ran into 
several roadblocks in gaining access to documents, and at one 
point, were even kicked out of the building as they tried to inter- 
view employees. 

I want to send a very, very clear message that stonewalling a 
congressional investigation is unacceptable and will not be toler- 
ated. Let me repeat: stonewalling a congressional investigation is 
unacceptable and will not be tolerated. 

Very little has changed in the last 5 years, despite a growing bu- 
reaucracy whose top priority is to address these issues. It is quite 
disturbing that we still regularly hear about discriminatory treat- 
ment or delay in resolving complaints. It seems to be that the miss- 
ing link here seems to be one of accountability, from the highest 
level of management to the county supervisor in the field who fails 
to adequately service an African American farmer’s loan. 

We have been talking about these issues for long, long enough. 
It is time to do something about them. It is my hope that we can 
work together to come up with a better strategy to ensuring that 
every client and every employee at USDA is treated fairly. This is 
why we have come together today, to put an end to this ugly, un- 
fair practice. 

[The prepared statement of Hon. Edolphus Towns follows:] 



3 


HEMBYA WAXMAN, CAUf OfiWA, 
Cl MRMAM 


rOU OAVtS. VIB6SNIA. 

HANKING MINORITY MtMBER 


TOM lAWrOS, GAUTORNIA 
EOCtPI (US TOWNS. New TOOK 
PAULE KANJORSG, PENNSVLVANA 
CAROLYNS MALWiEY, NEW YORK 
EUJ«I E CUMMINGS, MARYLAND 
DENNIS J KUCINiai. OHIO 
DANNY K DAYS, ILLINOIS 
JOHN F. TIERNEY, MASSACISiSETTS 
WM LACY CLAY. MISSOURI 
DIANE E WATSON. CALIFORNIA 
STEPHEN F. LYNCH, MASSACHUSETTS 
BRIAN HIGSNS. NEW YORK 
JOHN A YASMUTH, KaJIUCKY 
BRUCE L. SRALEY, IOWA 
ELEANOR HOLMES NORTON, 

DISTRICT OF COLUMBIA 
BETTY McCaLUM, MIfINESOTA 
JIM COOPER, TENNESSEE 
CFRIS VAN H<Xi.6N, MARYLAND 
PAULW HODES. NEW HAMPSHIRE 
CHRISTOPHER S MUFRMY, CONNECTICUT 
JC«N P SARBANES. MARYLAND 
PETER WELCH, VERMONT 


C»<fE HUNCHED TB«rm CONGRE^ 

Congregg of tfte ®ntteb states 

Jlouse of Hepresfentatibcfii 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 
2157 Rayburn Hou^Ofice Building 
Washw^ston, DC 20615-6143 


DAN BIWTON, INDIANA 

CHRISTOPHER SHAYS. CONNECTICUT 
JOHN M. MWIUGH, NEW YOTK 
JOHNL M(CA.FLOTtDA 
MARKE SOUDER. INDIANA 
TODD RUSSELL PLATTS, PENNSYLVANIA 
CHWS CANNON, UTAH 
JOHNJ 0UNCAN,JR_ TENNESSEE 
MICHAEL R TURNER, OHIO 
DARRELL e, BSA, CAUFORNIA 
KENNY MAHCHANT, TEXAS 
LYNN A WESTMORELAND, GEORGIA 
PATRICKT MCHENRY, NORTH CAflOUNA 
VIRGINIA FOXX, NORTH C«<0LINA 
BRIAN P BILSRAY, CALIFORNIA 

JIM JORDAN, OHIO 


WAJOMtY !20^2:S-59S> 
Facswe 1203225-4781 
Mhcrty (2032^-8074 

www.overatghthouse,gov 


Subcommittee on Government Management, 
Organization and Procurement 

Management of Civil Rights 
at the U.S. Department of Agriculture 

May 14, 2008 
2:00 p.m. 2154 Rayburn 

OPENING STATEMENT 


We are here to consider an issue that is a cause for great alarm- the all-too- 
familiar issue of discrimination within the IJ.S. Department of Agriculture. 
Discrimination in the delivery of services to minority and women farmers and the 
treatment of minority employees at USDA has been a longstanding problem - 
confirmed by official investigations and class-action settlements. What was once 
envisioned by President Lincoln as *'the people's department,” many now call 
“the last plantation.” For too long, we have heard from minority farmers and 
workers at USDA that they have been shut out of government loans and job 
promotions for decades because of the color of their skin. 

In fact, these problems have persisted for so long that Congress took action to 
reorganize USDA to emphasize the importance of civil rights. The 2002 Farm 
Bill established the position of Assistant Secretary for Civil Rights to provide 
overall leadership and coordination of all civil rights programs across the 
Department of Agriculture. Today, five years later, we examine whether that 
reform has been effective at eliminating discrimination at USDA. Unfortunately, 
the answer to that question appears to be “no.” 

Although Congress gave the Office of Civil Rights the resources, autonomy, and 
authority to adequately help underserved farmers and minority employees, it 
remains unclear whether there has been any improvement in the management of 
USDA’s civil rights programs. Serious questions have been raised in the past 
year regarding how USDA tracks, processes, and remedies complaints brought by 
farmers and its own employees. 



4 


Today we will hear from members of the farming community as they tell us the 
difficulties that they personally experienced at USDA. We will also hear from 
representatives of USDA employees. These personal stories are supported by 
government audit findings. Last year, the USDA Inspector General reported that 
employment complaints were not timely processed, there were no internal 
controls to ensure the accuracy and reliability of complaint data, and that 
complaint data in the Department’s computer files did not match up with the 
physical case files. GAO also reports that lengthy backlogs persist and that 
USDA’s statistics are not reliable. 

Furthermore, there have been a series of incidents in the past few months that 
cause me to question the Department’s commitment to safeguarding civil rights. 

In September 2007, an e-mail circulated among employees of the Farm Service 
Agency criticizing Congressional action to reopen a landmark civil rights case 
against USDA for discrimination in providing farm loans to black farmers. More 
recently, GAO ran into several roadblocks in gaining access to documents, and at 
one point were even kicked out of the building as they tried to interview 
employees. I want to send a very clear message that stonewalling a Congressional 
investigation is unacceptable and will not be tolerated. 

From my view, very little has changed in the last five years, despite a growing 
bureaucracy whose top priority is to address these issues. It is quite disturbing 
that we still regularly hear about discriminatory treatment or delay in resolving 
complaints. It seems to be that the missing link here seems to be one of 
accountability - from the highest level of management to the county supervisor in 
the field who fails to adequately service an African-American farmer's loan. 

We’ve been talking about these issues for long enough. It’s time to do something 
about them. It is my hope that we can work together to come up with a better 
strategy to ensuring that every client and employee at USDA is treated fairly. 



5 


Mr. Towns. I now stop and I recognize the ranking member of 
the committee, Mr. Bilbray from the great State of California. 

Mr. Bilbray. 

Mr. Bilbray. Thank you, Mr. Chairman. I want to thank you for 
having this hearing. I want to thank the panel for coming forward. 

Mr. Chairman, I think your opening statement speaks for both 
of us, and I will leave it at that. Thank you very much. 

Mr. Towns. Thank you very much. 

We are delighted this afternoon that we have with us a gen- 
tleman who has a District that has a tremendous amount of agri- 
culture in it, and, of course, we would like to ask unanimous con- 
sent that he be allowed to sit with the committee today and to be 
able to give testimony and to be able to ask questions, Mr. Bishop 
from the State of Georgia. 

Mr. Bishop. 

Mr. Bishop. Thank you very much, Mr. Chairman. 

First I would like to take this opportunity to salute Chairman 
Towns for his leadership on the issue of Civil Rights within USDA 
and to commend his continued efforts to seek equity and justice, 
not just for African American farmers, but for minority farmers ev- 
erywhere. 

Chairman Towns’ continued diligence and leadership on this 
issue dates back to 1983, when he arrived first in Washington as 
a young Congressman from Brooklyn. And, it serves as a tribute 
to his character and to his unfailing commitment to life and to pro- 
tect those in our society who, by no fault of their own, continue to 
be subjected to the twin evils of bigotry and racism. 

This hearing comes at a crucial point on the legislative calendar, 
given the recent completion and the imminent approval of a new 
farm bill by the House of Representatives and the reopening of the 
Pigford case and the other initiatives that are aimed at preserving 
and expanding the number of small farms owned by minorities. 

Many of us in attendance here today are disappointed that, in 
2008 we again find ourselves in another congressional oversight 
hearing on the shortcomings of the Department of Agriculture. Our 
USDA has yet to fully execute the Federal statutes and regulations 
governing the administration of our Nation’s agriculture programs 
in a fair, equitable, and nondiscriminatory manner. Most disturb- 
ing appears to be the institutionalization of discriminatory prac- 
tices, which at this point seem firmly rooted throughout the De- 
partment in both its external and internal operations and program 
management. 

Ironically, Abraham Lincoln, who is probably best remembered 
as the President who saved the Union and freed slaves, was also, 
the very same individual who had the vision, the insight, and the 
wisdom to found the Department of Agriculture. In 1862, when 
President Lincoln founded the U.S. Department of Agriculture, he 
referred to his new creation as the People’s Department. In Lin- 
coln’s day, 90 percent of Americans were farmers, and all needed 
good seed and good information to grow their crops. These farmers 
included the newly freed slaves. 

African American farmers reached their peak in terms of land 
ownership in 1910 when 218,000 African American farmers owned 
around 15 million of the 873 million acres that were being farmed 



6 


nationwide. Since 1910, while the total number of individual farms 
nationwide has decreased, the number of acres being farmed in the 
United States actually has grown slightly by about 6 percent. De- 
spite this growth in farmed acreage nationwide, African American 
owned or controlled landholdings have decreased significantly over 
time. By 1978, African American owned or controlled landholdings 
fell to 2.4 million acres, and in 1999 2.3 million acres of land. 
Today that number stands at less than 2 million acres of the al- 
most 931 million acres currently being farmed in the United 
States. 

A 1982 report by the U.S. Commission on Civil Rights charged 
that systematic racism carried out by the U.S. Department of Agri- 
culture was one of the major causes of land loss among African 
American farmers. The Commission found that USDA employees 
routinely denied African American farmers credit and information 
about USDA programs that were readily accessible to White farm- 
ers. The Commission found the situation so dire they projected that 
if nothing were done, African American owned farms would cease 
to exist by the year 2000. 

In 1990 a report issued by the Congress’ House Committee on 
Government Operations, Mr. Chairman, this very committee in a 
previous life, concluded that little had changed for the African 
American farmer since the 1982 report had been published. By sys- 
tematically denying or delaying loans essential to financing their 
crops and withholding other Federal farm support on a widespread 
basis, USDA employees forced African American farmers to lose 
their land, their livelihoods, and their communities. 

Central to this issue is the manner in which the Farm Service 
Agency executes and administers its programmatic responsibilities 
in conjunction with the local county advisory committees. This is 
where the rubber meets the road, and all too often it serves as the 
link to many of the front line issues that are facing African Amer- 
ican farmers today. 

Even as we sit here today, my staff is working with constituents 
facing potential discriminatory actions within a couple of FSA of- 
fices in my District. Critically important to resolving this issue 
means expanding and strengthening the administrative and man- 
agement tools in place at the Department to provide the broadest 
and most effective level of management accountability possible. 

So, here we are again today raising the same concerns, all in the 
name of asking, if not admonishing, the Department of Agriculture 
to do what is fair and what is right. 

Mr. Chairman, I commend you and your subcommittee for again 
taking up this important issue today. It is my fervent hope that we 
may 1 day see a Department of Agriculture, which operates and 
administers its programs and activities as its founder. President 
Lincoln, would have hoped and expected as the People’s Depart- 
ment, not just for some of the people, but for all of the people in 
these United States. 

Thank you, Mr. Chairman, for allowing me to participate. I look 
forward to the testimony of the witnesses. 

[The prepared statement of Hon. Sanford D. Bishop, Jr., follows:] 



7 


Statement 

Representative Sanford D. Bishop, Jr. 

Subcommittee on Government Management, Organization and Procurement 
“Management of Civil Rights at the USDA” 

May 14, 2008; 2:00pm; Room 2154 


Thank you Mr. Chairman. 

First, I would like to take this opportunity to salute Chairman Towns for his leadership on 
the issue of civil rights within the USDA, and to commend his continued efforts to seek 
equity and justice for not just African American farmers, but for minority farmers 
everywhere. 

Chairman Towns’ continued diligence and leadership on this issue dates to 1983, when 
he arrived in Washington as a young Congressman from Brooklyn, and serves as a tribute 
to his character and unfailing commitment to lift up and protect those in our society who, 
by no fault of their own, continue to be subjected to the twin evils of bigotry and racism. 

This hearing comes at a crucial point on the legislative calendar, given the recent 
completion and imminent approval of a new Farm bill by the U.S. House of 
Representatives, the reopening of the Pigford case, and the other initiatives aimed at 
preserving and expanding the number of small farms owned by minorities. 

Many of us in attendance today are disappointed that, in 2008, we again find ourselves in 
another Congressional oversight hearing on the shortcomings of the Department of 
Agriculture. The USDA has yet to fully execute the Federal statutes and regulations 
governing the administration of our nation’s Agriculture programs in a fair, equitable, 
and non-discriminatory manner. 

Most disturbing appears to be the institutionalization of discriminatory practices, which at 
this point, seem firmly rooted throughout the Department in both its external and internal 
operations and program management. 

Ironically, Abraham Lincoln, who is probably best remembered as the President who 
saved the union and freed the slaves, is also the very same individual who had the vision, 
insight, and wisdom to found the Department of Agriculture. 

In 1862, when President Abraham Lincoln founded the U.S. Department of Agriculture, 
he referred to his new creation as the "People's Department." 

In Lincoln's day, 90 percent of the Americans were farmers, and all needed good seed 
and good information to grow their crops. These farmers included the newly freed 
slaves, as well. 


1 



8 


African American farmers reached their peak in terms of land ownership in 1910, when 
over 218,000 African American farmers owned around 15 million of the 873 million 
acres being farmed nationwide. 

Since 1910, while the total number of individual farms nationwide has decreased, the 
number of acres being farmed in the United States actually has grown slightly, by 6 
percent'. 

Despite this growth in farmed acreage nationwide, African American-owned or 
controlled landholdings have decreased significantly over time. 

By 1978, African American - owned or controlled landholdings fell to 4.2 million acres. 
And in 1999, African American farmers owned just 2.3 million acres of land. 

Sadly, today, that number stands at less than 2 million acres of the almost 931 million 
acres currently being farmed in the U.S^. 

In 1982, a report by the U.S. Commission on Civil Rights charged that systematic racism 
carried out by the U.S. Department of Agriculture USDA) was one of the major causes of 
land loss among African American farmers. The Commission found that USDA 
employees routinely denied African American farmers credit and information about 
USDA programs readily accessible to white farmers. 

The Commission found the situation so dire, they projected that if nothing were done, 
African American-owned farms would cease to exist by the year 2000. 

In 1990, a report issued by Congress’s House Committee on Government Operations - 
Mr. Chairman, this very Committee in a previous life - concluded little had changed for 
the African American farmer since the 1982 report had been published. 

By systematically denying or delaying loans essential to financing their crops, and 
withholding other federal farm support on a widespread basis, USDA employees forced 
African American farmers to lose their land, their livelihoods, and their communities. 

Central to this issue is the manner in which the Farm Service Agency executes and 
administers its programmatic responsibilities, in conjunction with the local County 
Advisory Committees. 

This is where the rubber hits the road, and all too often, serves as the link to many of the 
frontline issues facing African American farmers today. 

Even as we sit here today, my staff is working with constituents facing potential 
discriminatory actions within a couple of FSA offices in my district. 


' US Census numbers. 
^ US Census numbers. 


2 



9 


Critically important to resolving this issue means expanding and strengthening the 
administrative and management tools in place at the Department to provide the broadest 
and most effective level of management accountability possible. 

So, here we are again today, raising the same concerns - all in name of asking, if not 
admonishing, the Department of Agriculture into doing what’s fair and right. 

Mr. Chairman, I commend you and your Subcommittee for again taking up this important 
issue today. 

It is my fervent hope that we may one day see a Department of Agriculture which 
operates and administers its programs and activities as its founder. President Lincoln, 
would have hoped and expected - as the “people’s department.” Not just for some of the 
people, but for all the people in these United States. 

Thank you, Mr. Chairman. 


- 30 - 



10 


Mr. Towns. Thank you very much. 

Let me say to the witnesses we swear in all of our witnesses 
here. It is a longstanding policy. So if you would, stand and raise 
your right hands. 

[Witnesses sworn.] 

Mr. Towns. Let the record reflect that all of them answered in 
the affirmative. 

Let me introduce the panel. 

Mr. John Boyd is president of the National Black Farmers Asso- 
ciation. Mr. Boyd is a staunch advocate for African American farm- 
ers throughout the country and has worked tirelessly to help eradi- 
cate discrimination within the USDA system. 

Welcome. 

Mr. Garcia is a third generation farmer and the lead plaintiff in 
a class action brought on behalf of Hispanic farmers and ranchers 
against USDA. He is also president of the Hispanic Farmers and 
Ranchers of America. 

Welcome, Mr. Lupe Garcia. 

Also I would like to introduce Mr. Phil Givens. Mr. Givens is a 
Native American and African American farmer from Oklahoma. 
Mr. Givens has farmed for over 26 years and represents farmers 
from 8 different Indian tribes located throughout the midwest. 

Welcome, Mr. Givens. 

Mr. Lucas, Lawrence Lucas, is president of the USDA Coalition 
of Minority Employees, with over 35 chapters throughout the coun- 
try. The Coalition works to remedy representation in the USDA 
work force by advocating equal employment and promotion oppor- 
tunities for all employees. 

Welcome, Mr. Lucas. 

Also we have Lesa Donnelly, who is the advisor for Women’s 
Issues for the USDA Coalition of Minority Employees. She rep- 
resents employees in administrative proceedings with the Depart- 
ment. 

Welcome, Ms. Donnelly. 

Let me begin with you, Mr. Boyd, and we will come right down 
the line. 

Let me just say this: we have a light, which means that you are 
allowed 5 minutes to make a statement. Then, the yellow light will 
come on and that will be like caution you to let you know that you 
should sum up, and then immediately after the yellow light means 
a red light that means you should shut up. [Laughter.] 

Let’s move right down the line. 



11 


STATEMENTS OF JOHN BOYD, PRESIDENT, NATIONAL BLACK 
FARMERS ASSOCIATION; LUPE GARCIA, PRESIDENT, HIS- 
PANIC FARMERS AND RANCHERS OF AMERICA, INC.; PHIL 
GIVENS, PRESIDENT, PHIL GIVENS CO., REPRESENTATIVE 
OF NATIVE AMERICAN FARMERS; LAWRENCE LUCAS, PRESI- 
DENT, USDA COALITION OF MINORITY EMPLOYEES; AND 
LESA DONNELLY, ADVISOR FOR WOMEN’S ISSUES, USDA CO- 
ALITION OF MINORITY EMPLOYEES 

STATEMENT OF JOHN BOYD 

Mr. Boyd. Thank you very much. Mr. Chairman, we appreciate 
the opportunity today to testify before this distinguished commit- 
tee. To the ranking member and Congressman Bishop, we are old 
friends here. 

This has been such a long, long plight, and we also would like 
to recognize some of the other congressional Members that have 
been supporting the Black farmers and minority farmers around 
the country: Congressman Scott; Senator Obama, who sponsored 
legislation in the Senate for us, and other distinguished Members 
that have been working on this issue for such a long, long time. 

Mr. Chairman, you stole my testimony. So many of the things 
that I wanted to say, I won’t read from my testimony. I would like 
to speak from the heart for just a few minutes about the plight of 
the Black farmers. 

We have been losing land at an enormous rate, three times 
greater rate than any other race of people in this country. In my 
own personal opinion, I feel that Black farmers have been shut out 
of our USDA lending programs, i.e., the U.S. farm subsidy pro- 
gram, where the top 10 percent of recipients in the U.S. farm sub- 
sidy program receive over $1 million, and Black farmers on average 
in this country receive less than $200. This is something that we 
fought diligently to correct in the past three farm bills. 

You asked a question earlier during your testimony: is the Office 
of Civil Rights working? Well, I came today to testify, to tell you, 
that it is absolutely not working. The Office of Civil Rights is, in 
my own opinion, in total disarray and totally dysfunctional to serve 
not just Black farmers, but small farmers around the country. 

We hear that there are complaint inquiries that may be shredded 
or may not be processed, so on and so forth. Mr. Chairman, these 
are farmers’ lives. I think that is where we lose the connection with 
the U.S. Department of Agriculture when we make inquiries about 
these complaints. These are just not complaints; these are individ- 
uals’ lives that they are refusing to process, that have been sitting 
there with dust on them. There have been complaints after com- 
plaints, report after report, the Blue Ribbon Task Force Report, the 
Civil Rights Action Team Report under Secretary Glickman, the 
Office of Civil Rights, where myself and Lucas and some of these 
other advocates lobbied for to get the Assistant Secretary of Admin- 
istration. 

We were so excited about that, and we thought we were heading 
in the right direction, but it appears, Mr. Chairman, that we do not 
have the right person with the right amount of gumption to take 
on the old system there at the U.S. Department of Agriculture. 
What I mean by that is, after they get called in to meetings, they 



12 


may come to the Department with the right intentions, but they 
leave there with a zero, because nothing seems to happen with the 
complaints and the settlement. 

You spoke earlier about the incident with the 30-year FSA em- 
ployee. How can you have a 30-year veteran? Mr. Chairman, I 
spent 8 years, 8 long years, lobbying to get that one piece of legisla- 
tion into the farm bill. When I heard about this particular e-mail 
that was sent to me by an anonymous person within Farm Service 
Agency saying that there were others out there, not political ap- 
pointees, but career bureaucrats spending the taxpayers’ money to 
lobby against bringing relief to Black farmers around the country, 
many who can’t read and write and express themselves the way I 
am able to express myself to this committee — how dare those kinds 
of employees, Mr. Chairman, that are supposed to be giving a hand 
up to Black farmers, that are the very employees working to make 
sure that we become extinct. That is a disgrace to this Congress; 
it is a disgrace to this country. 

We appreciate your letter of inquiry to the Secretary questioning 
that issue. 

Then we had the GAO, who was not even allowed to question 
those who found fault in the system. Here, again, we have the 
USD A, with such arrogance, with the guidance of Office of General 
Counsel. Myself and Lucas and Ms. Gray and others have fought 
for such a long time to get the Office of General Counsel to stop 
dictating policy to the Secretary. The Secretary should be held ac- 
countable for these instances at the U.S. Department of Agri- 
culture. 

As I close in my testimony. Black farmers need justice. We are 
getting these calls every day. We appreciate you, Mr. Chairman, 
and Congressman Bishop for helping make sure that the Black 
farmers will stay a part of the farm bill, but we need you to go one 
step further and hold those individuals accountable so that Black 
farmers will be able to walk into a USD A office in their local coun- 
ties and be treated with dignity and respect and be treated like a 
man. Because, I am going to tell you first-hand, the Department of 
Agriculture almost made me less than a man. 

My great-great grandfather was a slave breeder. My grandfather 
was a farmer. My daddy was a farmer. They were able to hold on 
to the same farm that they passed on to me four generations later, 
and the Government was ready to foreclose on me. I felt less than 
a man that the person from the brink of slavery was able to farm 
and feed 12 children, and I only had 1 child, and the Government 
was ready to foreclose on me. 

Thank God that we had good Members like yourself and Con- 
gressman Bishop and Secretary Glickman who put a moratorium 
on farm foreclosures, and that moratorium came 2 days before the 
sale date of my farm. I was able to hold on. 

I was one that beat the statistics, but what happened to all of 
the other Black farmers out in Alabama and Mississippi and Geor- 
gia? They face retaliation today, because the same person that dis- 
criminated against them in the first place is the same person that 
we have to go back to to ask to participate in the U.S. farm subsidy 
program, to participate in the farm lending programs. 



13 


So, we are here today to ask this committee to take this testi- 
mony that you are going to hear from myself and other advocates 
today and go one step further. Hold those accountable who think 
they are not — or they think they are above this committee and 
above law. 

Thank you very much. I appreciate the opportunity and I look 
forward to your questions, Mr. Chairman. 

[The prepared statement of Mr. Boyd follows:] 



14 


JOHN BOYD, PRESIDENT 
NATIONAL BLACK FARMERS ASSOCIATION 
TESTIMONY BEFORE 

CONGRESS OF THE UNITED STATES 
HOUSE OF REPRESENTAVIVES 
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 
21 57 RAYBURN HOUSE OFFICE BUILDING 

THE SUBCOMMITTEE ON GOVERNMENT MANAGEMENT 
ORGANIZATION AND PROCUREMENT OF THE COMMIITEE 
ON OVERSIGHT AND GOVERNMENT REFORM 

WEDNESDAY, MAY 14™ 2008 

Honorable Chaiiman Waxman, Subcommittee Chairman Edolphus Towns, the rest of the 
committee and others who have worked with the National Black Fanners Association 
(NBFA) on this very important issue over the years. 

My name is Dr. John Boyd and I am the Founder and President of the National Black 
Farmers Association. I founded the organization in 1995 to help eradicate the 
discrimination that black farmers faced when interacting with the United States 
Department of Agriculture (USDA). I also founded this organization to develop a 
national outreach program and create international trade opportunities for minority and 
other small farmers. 

While it is true to say that I am a fourth generation farmer. It is also true to say that I am 
a fourth generation black farmer from Baskerville, Virginia that has been denied 
information and assistance from the USDA that many of the non-black farmers have 
received. And yet, 1 still stand tall. But I’m not standing tall because of something I’ve 
done. Tm standing tail because I’m standing on the shoulders of the tens of thousands of 
black farmers that put their faith in me to carry their message forward. And that message 
is none other than the most fundamental principle that this country is built on; “justice for 
all’’. 

It is indeed an honor and a privilege to have the opportunity to testify before your 
committee today. 

During the past sixteen years 1 have testified before Congress more times than I can keep 
track of. I am hopeful that today’s testimony will make a difference for the thousands of 
black farmers with pending civil rights cases. 

The NBFA has lobbied Congress to lift the statue of limitations for black farmers who 
have faced and continue to face discrimination from USDA. Under the Reagan 
administration, the Office of Civil Rights was reduced to just two workers. Let me repeat 
that, two workers were responsible for all civil rights issues in the USDA. To me, that is 



15 


an insult. It wasn’t until years later, after the NBFA lobbied aggressively, that the USDA 
established the Office of the Assistant Secretary for Civil Rights. 

We have engaged in rallies and protests around the country to help bring much needed 
attention to the plight of the black farmer. The NBFA has petitioned the United Nations 
for relief and to raise awareness of the loss of land for black farmers. And yes, I rode my 
mules “Struggle and Forty Acres” 280 miles from my farm to arrive here in the Nations 
Capital of Washington, DC to protest the lack of payments to black farmers that should 
have been a reality following the consent decree. 

For far too long the USDA has treaded carefully to skirt around giving black farmers 
their justice. Time and time again empty promises only lead to empty fields being swept 
away by discrimination at the hand of the USDA. The very agency whose mission it is to 
provide help to farmers is the same agency that nearly eradicated black farmers as tillers 
of the soil. 

The remarkable fact is that just about every black person in this country is two to three 
generations away from some family farm as share croppers and slaves. At the turn of the 
century there were nearly one million black farm families. Today there are fewer than 
29,000 per the U. S. Census. 

Why is it that Congress can pass laws to protect animals such as the brown bear, the bald 
eagle, the rock fish, and yet the black farmers who are human beings must return to 
Congress year after year to plead for relief for the egregious acts of discrimination we 
continue to face. 

Years ago, the USDA under Secretary Glickman’s leadership acknowledged the 
discrimination and agreed to settle the largest civil rights lawsuit in American history. 

Yet today 1 report to you that as time goes by, more black farm families lose their farms 
and their livelihoods because Administration after Administration hesitates to act. 

Time is not on our side. We are now less than 1 % of the nation’s fanners. When 
reporters make inquires at the USDA, the response from senior officials is always the 
same, “no comment”. 

Today I ask congress to take action for the slow processing time of program complaints. 

I am disappointed that the hard work I have engaged in alongside other advocates has not 
yielded the justifiable results. The Office of the Secretary for Civil Rights at the USDA 
in my opinion is merely a shell so that some accountability survey can check a box that 
one exists. It has only delayed black farmers due while loss of life and loss of our rich 
heritage continues to plague black farmers. 

Many of you today know me and my work on first name basis. I have worked the black 
farmers late claim legislation for nearly eight long brutal years. When I received an 
anonymous email regarding Carolyn Cooksie’s lobbying effort to Congress to oppose 
relief to black farmers, I said enough is enough. We cannot allow a civil service 



16 


employee with more than 30 years in government actively campaign to ruin the lives of 
over 74,000 black farm families. Mrs. Cooksie called the legislation regarding the 
Pigford lawsuit “awful” and complained that her office would have to do too much work. 
She instructed other government employees to contact Congress to oppose this legislation 
and warned them not to use government equipment. This is the behavior that we have 
had to deal with. 


USDA Boots Auditors 

On Thursday Feb 28*'' The United States Department of Agriculture abruptly ordered 
congressional auditors to leave its Washington DC headquarters and told its employees not to 
cooperate with them. This kind of arrogance is appalling. And show USDA has no respect for 
congress or those willing to bring forth the truth. Today black farmers have little faith that there 
will be action or those who continue to obstruct justice will be held accountable. 

Lack of farm subsidies 

The survival of the black farmers lie heavily in the us farm subsidy program, A program in which I 
believe has over looked and left out black farmers. A recent study below shows the finding by the 
NBFA and the Environmental Working Group (EWG) 

A Widening Farm Subsidy Gap Is Leaving Black 
Farmers Further Behind 

Download this report as a PDF 

Black farmers receive between one-third to one-sixth of the benefits under major 
federal crop subsidy programs that other farmers receive, and the “subsidy gap” has 
widened over the past decade. The gap will become more inequitable if a bill reported 
by the House Agriculture Committee passes the House later this week, researchers 
said. 

The farm subsidy gap is emerged from an analysis of computerized USDA subsidy 
payment records for individual farm subsidy recipients and farm businesses that 
previously have not been available to outside researchers. The study was prepared by 
the National Black Farmers Association (NBFA) and the Environmental Working Group. 
The two organizations collaborated on a 2003 analysis, Obstruction of Justice, that 
reignited the debate over the injusHces tens of thousands of black farmers have 
experienced in the settlement of the Pigford vs. USDA case involving discrimination in 
government farm lending. 

Concern about discrimination against black farmers at USDA has focused primarily on 
the department’s programs to provide farm acquisition (i.e. "ownership”) and 
operating loans to farmers whose financial circumstances make it difficult form them 



17 


to get credit elsewhere. The loans are processed at local USDA offices by the 
department’s "lender of last resort,” the Farm Services Agency (formerly the Farmers 
Home Administration). 

Only five per cent of the farmers participating in the Pigford racial discrimination 
lawsuit against USDA made claims based on subsidy programs, which were limited to a 
total of $3,500 for the “fast-track” settlement process that was supposed to provide 
essentially automatic restitution. The majority of these claims involved disaster relief 
programs. The examples of discrimination were poignant, "[i]n 1994, the entire county 
of Greene County, Alabama where Mr. George Hall farmed was declared eligible for 
disaster payments on 1994 crop losses. Every single application for disaster payments 
was approved by the Greene County Committee except Mr. Hall's application for four 
of his crops." Pigford v. Glickman . 185 F.R.D. 82, 87 (D.D.C. 1999). In the Complaint, 
Mr. Hall further stated that his payment yields were reduced in retaliation after he 
filed a discrimination complaint challenging the denial. See Seventh Amended Class 
Action Complaint, Pigford v. Glickman . 97-1978 (PLF). at 115(c). 

Less attention has been given to disparities between black farmers and others under 
USDA’s commodity subsidy programs. A pioneering July, 2007 report issued by Oxfam 
America argued that minority farmers, including black farmers, have been “shut out" 
of USDA farm programs {Shut Out: How U.S. farm programs fail minority farmers). It 
is often argued that black farmers receive less farm assistance because they operate 
smaller farms and tend to produce non-subsidized crops and livestock. As the USDA's 
1997 Civil Rights Action Team Report observed, however, discrimination by USDA 
officials may itself have influenced the make-up of black-operated farms over time. 
"[T]he disparity in participation and treatment of nonminority and minority farmers 
may be partially accounted for by the smaller average size of minority- and female- 
operated farms, their lower average crop yields, and their greater likelihood not to 
plant program crops, as well as less sophisticated technology, insufficient collateral, 
poor cash flow, and poor credit ratings. However, representatives of minority and 
female farm groups point out that previous discrimination in USDA programs has 
helped to produce these very conditions now used to explain disparate treatment." See 
CRATat 21-22. 

Review of agriculture census data indicates that disparities in subsidy assistance 
between black and white farm operators cannot be fully explained by the fact that 
blacks operate smaller farms or tend to grow ‘non-program’ crops. More important is 
the question of the degree to which discrimination against black farmers by local USDA 
offices has been a long-term factor in that has limited the ability of black farmers to 



18 


expand their operations-and thus have ‘average-size farms’-or discouraged them 
from growing subsidized program crops. 

A Subsidy Gap Widens: Crop Subsidy 
Payments, 1995-2005 

Analysis of payments to individual farmers and farm businesses shows that a subsidy 
gap between black farmers and all others has expanded dramatically in the past 
decade, from $2,225 per recipient in 1995 to nearly $10,000 per recipient in 2005. 
[Chart 1, Table 1]. 

The analysts compared black recipients with all other recipients, including individual 
subsidy recipients who are predominantly white, and farm businesses, which are 
predominantly white-owned. Analysis of subsidy payments over this period showed 
that virtually all black farmers received their benefits as individuals, with very few 
organized for USDA purposes to collect payments as businesses (corporations, 
partnerships, joint ventures). 

Detailed Beneficiary-Level Data, 2003-2005 

Release of data collected by USDA under Section 1614 of the 2002 farm bill allows 
analysis comparing individual beneficiaries by race. These more detailed show that 
fewer than 8,000 blacks collected crop subsidies each year over that period. The total 
amount was just over $23 million per year-out of an average of $12 billion paid per 
year under these programs over that period. 

As I close It is my sincere hope that this committee and this congress fulfills a promise 
that’s others have forgotten. Justcie for the black farmer. 



19 


Mr. Towns. Thank you very much, Mr. Boyd, for your testimony. 
Mr. Garcia. 


STATEMENT OF LUPE GARCIA 

Mr. Garcia. Thank you. Chairman Towns and Ranking Member 
Bilbray and members of the distinguished subcommittee. I am 
Lupe Garcia, and everybody knows me by Lupe. I come from Dona 
Ana County. I am a third generation farmer. I represent the His- 
panic Farmers and Ranchers of America. I am the lead plaintiff in 
a class action brought about for the Hispanic Farmers and Ranch- 
ers against the U.S. Department of Agriculture. 

My family and myself own two farms, total of 626 acres. I served 
the United States as a visiting professor with Oregon State Univer- 
sity and with U.S. Mission in Central and South America. I came 
back to farm with my brother and father, and this is where the dis- 
crimination occurred to my family in the 1980’s. Our case seeks 
remedy of massive and admitted discrimination against Hispanic 
farmers who are denied equal access to USDA farm credit and non- 
credit farm benefit programs. When they complain to USDA about 
such denials; USDA refuses to process and investigate their com- 
plaints in violation of the ECOA and Administrative Procedure Act. 

Since 1983, USDA denied every loan application we submitted. 
We encountered difficulties that normally affect farming. USDA de- 
nied us further credit, denied us disaster relief, denied us debt 
servicing. As a result, we slowly and systemically drained our oper- 
ating capital. We were operating out of, as you say, out of cuff. 

In 1984 a flood destroyed 60 acres of our chiles and our entire 
cotton crop. The USDA denied our application for disaster relief, 
because we were bad farmers, according to some of the committee 
men. 

In 1986, USDA loan specialists recommended to both USDA 
county loan officer and USDA Chief of Agriculture Loans of the 
State of New Mexico that our land be divided among me and my 
father and brother to increase the amount that we would be able 
to borrow. Not only did USDA reject our loan application, but it 
never informed us of this option to divide our farm land. 

In 1988 USDA denied our application for disaster relief after an- 
other flood destroyed 550 acres of crops. When we appealed to the 
county office, USDA literally laughed in our faces, denied our ap- 
peal for relief. 

In 1988 we applied for primary loan servicing. USDA sat on the 
application for 2 years before denying it. 

And, in the 1990’s our farming operation continued to be slowly 
starved of the operating capital. In 1994, USDA, again, refused to 
work with us on loan restructuring. Later that year, we appealed 
to the USDA’s Adverse Decision NAD, and on an appeal the hear- 
ing officer ruled in our favor. 

In spite of our victory, USDA refused to follow the NAD decision. 
We never received any loan servicing. Later, we attended a medi- 
ation session where the senior USIIA official concluded that he 
would not approve anything that involved the Garcias. 

In 1998, we sought after farm buyers who were willing to pur- 
chase some of our land, which would enable us to service some of 



20 


the delinquent debts and refinance the remaining debt. Again, 
USDA denied this opportunity. 

In the end we lost our farms. I will sum it up, cut it short. I will 
talk from the heart. 

This kind of thing is still going on. I do outreach for USDA 
through the Hispanic Farmers and Ranchers. We need servicing for 
Hispanic farmers, minority farmers in New Mexico and El Paso 
County, TX. We are not getting it. We have been promised low-doc 
loans and all types of loans, and the percentage of Hispanic farm- 
ers that get the loans are less than 2 percent, even though we are 
helping the people with documentation of the loan applications. So 
there is a definite discrimination. 

We have heard of documents being destroyed in our Las Cruces 
office. This occurred this past year and just finished about 2 
months ago. This was going on. They were destroying documents 
in that office. This needs to be investigated by the GAO. 

Mr. Towns. Right. Thank you very much. 

Mr. Garcia. We need help, and I hope that Congress hears our 
plight and does something about it. 

[The prepared statement of Mr. Garcia follows:] 



21 


STATEMENT OF GUADALUPE L. GARCIA JR.. Farmer 
Las Cruces, NM 


Subcommittee on Government Management, Organizations and Procurement of 
the House Oversight & Government Reform Committee 
U.S. House of Representatives 

Washington, DC 
May 14, 2008 

2157 Rayburn House Office Building 
2:00 


For More Information Contact: 

Guadalupe L. Garcia Jr. 

9303 North Dona Ana Road 
Las Cruces, NM 88007 
505.644,6534 



22 


TESTIMONY 

OF 

GUADALUPE L. GARCIA JR. 

Chairman Towns, Ranking Member Bilbray and members of this distinguished 
subcommittee, good afternoon. My name is Guadalupe L, Garcia .Tr. 1 am from Dona Ana 
County, New Mexico. My family came to this area long before the United States existed. 1 am a 
third generation, life-long farmer and the lead plaintiff in a class action brought on behalf of 
Hispanic farmers and ranchers against the United States Department of Agriculture (“USDA”) 
called Garcia v. Schafer . I am also president of the Hispanic Farmers and Ranchers of America 
Inc. 1 welcome and deeply appreciate this opportunity to testify before this subcommittee. I am 
testifying on behalf of myself and G.A. Garcia & Sons Fami (“Garcia & Sons”). 

By way of background, I am 64 years old. I hold a Bachelor of Science degree in 
Agronomy and a Master of Science degree in Agronomy, specializing in biochemistry and 
physiology of pesticide from New Mexico State University. From 1969-1973, 1 served as a 
visiting professor for Oregon State University teaching agronomy in Guatemala, Honduras, El 
Salvador, Nicaragua, Costa Rica, Panama, Columbia and Ecuador under a contract between the 
University and the United States Agency for International Development. Upon returning from 
Central America, I resumed farming in partnership with my father and brother as Garcia & Sons. 
Garcia & Sons owned two farms totaling approximately 626 acres of land until they were 
foreclosed upon and sold in 1999. I continue to fami on rented land producing chili, onions, 
cotton, pecans and alfalfa. 

In 1999, the appraised value of the land comprising the two farms was S2.4 million and it 
was .sold for $1,075 million, less than half of its appraised value. Ultimately, Garcia & Sons was 
the victim of both intentional discrimination directed at us because we are Hispanic and a system 


- 2 - 



23 


that placed largely unfettered discretion in USDA local employees whose control over credit, 
debt servicing and disaster relief determines whether a farming operation such as ours survives or 
failes. 

In the early 1980s the USDA’s secretly dismantled the investigative and enforcement 
apparatus of its Office of Civil Rights. Upon learning this nearly two decades later. Congress 
took the unusual step of tolling the two-year statute of limitations applicable to the Equal Credit 
Opportunity Act (“EOCA”), 15 U.S.C. §1691 et seq.. thereby allowing farmers to seek damages 
for injuries arising from discrimination that occurred between .lanuary 1 , 1981 and December 3 1 . 

1 996. The complaint in our case was f led on October 1 3. 2000. 

Our case seeks to remedy years of massive and admitted discrimination against Hispanic 
farmers who are denied equal access to USDA farm credit and non-credit farm benefit programs, 
and when they complain to USDA about such denials USDA refuses to process and investigate 
their complaints in violation of ECOA and the .Administrative Procedure Act (“APA"), 5 U.S.C. 
§55 1 et seg. Our complaint covers past and present violations of ECOA and the APA dating 
back to January I, 1981. 

During that period we repeatedly applied for operating loans from USDA'. After initially 
receiving operating loans in 1981, 1082 and 1 98.3, we were never able to receive another loan 
from USDA despite the fact that the value of our famis e.xceeded the debt owed USDA and the 
local bank, and despite the fact that our farm plans setting forth our operating projections 
consistently reflected positive cash flows. Of the three years in which USDA provided us with 

' Hereinafter the term "USDA office" refers specifically to either the Fann Service Agency ("FS.A") or its 
predecessor, the Farmers Home Administration (“FmHA")of the United States Department of Agriculture. Today 
there are 2,346 local FSA offices in the Continental US whose purpose is to administer and manage USDA 
commodity, credit, conservation, disaster and loan programs on a local iesd. 



24 


operating loans, in at least one of these years, 1983, IISD.A did not fund the loan until after the 
planting season and we were thus unable to maximize production. In addition, in order to obtain 
the loans. USDA required us to secure those loans with eollateral worth substantially more than 
the loans. 

When we subsequently encountered difficulties that normally attend farming. USDA 
denied us further credit, denied us disaster relief and denied us debt servicing. As a result, we 
were slowly and systematically drained of operating capital until we lost our farms. For example, 
in 1 984, in addition to the two farms we owned, we rented another farm where we planted 
approximately 60 acres of chilies. A dam broke flooding that farm and destroying that entire 
crop. That same year we applied for disaster relief and were adv ised by a Mr. Grey of the 
.‘\griculture Stabilization Committee that we were eligible for the relief. However, Mr, .lames 
Frenzy denied our application for disaster relief because allegedly “we were bad farmers." 

In 1 986, we worked with USD/k Loan Specialist Joe Gurule to develop a fami and home 
plan application for guaranteed loans. During the application process, Mr. Gurule recommended 
to both the County Loan Officer and the Chief of Agriculture Loans for the Stale of New Mexico 
that our farm land could be divided among my father, brother and me thereby increasing the 
amount that we would be eligible to borrow. Not only did the USDA reject our loan application, 
but it never informed us of the option of dividing the farm land to increase our credit eligibility. 
Indeed, we did not learn of that option until eight years later when we requested a copy of our file 
from USDA. 

In 1988, another flood destroyed the crops on our 550-acre farm. Again that same year, 
we applied to USDA for disaster relief. Again, our application was denied. When we appealed 
to the county office, USDA literally laughed in our faces and denied our appeal for relief. 


- 4 - 



In 1988, we also applied for primary loan ser\icing. The USDA sat on the application for 
two years before finally denying it. In the 1 990s, our fanning operation continued to be slowly 
starv ed of operating capital. By about 1990, one of our white neighbors felt sufficiently 
emboldened to tell us that it was only a matter of time before he would own our land. 

In 1994, USDA again refused to work with us on a loan-restructuring plan. Later that 
year, we appealed USDA's adverse decision to the National .Appeals Division (“NAD”). On 
appeal, the hearing officer ruled in our favor, holding that we were entitled to loan serv icing and 
long term debt restructuring. Despite our victory, USDA reftised to follow the NAD decision 
and we never received any loan servicing assistance. 

During approximately the 1994-1995 lime frame, we attended a mediation session with 
USDA officials, the U.S. Attorney, our lenders’ attorneys and our legal counsel. At that session, 
Mr. Riley, the Chief of Agriculture Loans for the State of New Mexico, stated to everyone 
present that he “would not approve anything that involved the Garcias" and that he would not 
refinance our loans even if we had a million-dollar cash flow. 

In 1998, we sought to sell some of our land to service delinquent debts. Our lenders 
informed us that the land had to be sold by February 1. to avoid foreclosure. We found a buyer 
whose offer would have allowed us to pay off the bank debt and, with USDA’s assistance, we 
could have refinanced the remaining debt. We applied for the refinancing loan with USDA in 
early January and informed USDA that we had found a buyer and would submit a letter of intent 
once the parties completed negotiations. We subsequently faxed the letter of intent to USDA on 
January 25, for its approval. USDA denied the application two months later, well past the 


February 1 deadline. 



In the end. we lost our farms. To add insult to injur>', USDA assisted the Anglo farmers 
in purchasing our farms at a special master's sale. In fact, one of the purchasers was the neighbor 
who years earlier had stated that it would only be a matter of time before he would own our farm. 
And while we were forced to put up collateral far in excess of our loans we received, I am aware 
of instances in which Anglo farmers in my community were given loans without any collateral 
and given loans even though they were delinquent on their USDA loans. In at least one instance 
of which I am aware, a white farmer who was delinquent on a million dollars in loans was given 
a $500,000 loan that saved his farm operation. 

The USDA hamied ray family and me. look away my livelihood and slandered my family 
name in the community. 1 personally developed health problems due to the stress from fighting 
with the USDA and the bank for over 1.1 years. My children's education was hindered, as they 
could not obtain student loans because of the bankruptcies we were forced to file in order to try 
to keep our fanns. Despite the fact that our farmland was worth substantially more than our total 
debt, USDA's refusal to service the debt or to release a portion of the collateral to facilitate a 
restructuring of the debt prevented us from preserving any of our farm land. Our experience with 
USDA is by no means unique. Many additional declarations are available on our website 
www.garciaclassaction.org. 

One might well ask how is sucli discrimination by a taxpayer-funded federal department 
possible in the twenty-first century. A substantial part of the problem, I believe, lies in the fact 
that ( 1 ) there remains a great deal of discretion on the part of local USDA officials in 
implementing both credit and non-credit programs, (2) there is little, if any. accountability on the 
part of .such officials in particular and USDA in general, and ('3) there is no transparency with 
respect to USDA’s lending practices. In our own ca.se, the ability of the USDA to ignore the 



findings of the NAD concerning our right to debt serv icing and the refusal to provide loan 
servicing are but two examples of the d scretion that exists at the local level that can literally 
mean the difference between success and failure of a farming operation. Indeed as we learned in 
our case, once a USDA official had an unfavorable view of a distressed farmer, he could and 
would pul that farmer out of business. 

Over the years, we repeatedly complained of discrimination to USDA. Finally in 2000, 
an investigator from the USDA headquarters in Washington, D.C., a Mr. Antonio Califas, came 
to Las Cruces to investigate the complaints. As president of the Hispanic Farmers and Ranchers, 
1 personally met with Mr. Califas and arranged meetings for him with Hispanic farmers and 
ranchers. Over a period of months, Mr. Califas made three trips to the Las Cruces area. During 
one of his visits, Mr. Califas told me that he had discovered evidence of discrimination against 
Hispanic fanners and ranchers that was worst than the discrimination that he had seen with 
respect to black farmers in local USDA offices in the deep South. During his third visit to Las 
Cruces. Mr. Califas told me that he had been ordered not to conduct any further interviews of 
Hispanic farmers and ranchers. For approximately five days. Mr. Califas sat in his room at the 
Las Cruces Hilton awaiting further orders, while the many Hispanic farmers I had scheduled to 
meet with him had to be told to go home. Ultimately, he returned to Washington without 
conducting any further interviews. 

Since that time the USDA has refused to release Mr. Califas's report despite repeated 
requests by Congressman Reyes. Significantly, I have been advised by farmers who had an 
opportunity to witness it that since Mr Califas’s investigation, there has been substantial and 
ongoing destruction of documents by personnel in the Las Cruces USDA office. 1 am further 
advised that such conduct was in marked contra.st to the practice which existed prior to Mr. 



28 


Califas’s investigation, when stacks of records were visible cluttering the office. Such 
destruction of documents during the pendencv of litigation is not only very disturbing, but 
potentially illegal and clearly a violation of USDA's own regulations. (See attached 
Supplemental Declaration of Guadalupe L. Garcia Jr.) 

To date the USDA has not investigated any of my numerous discrimination complaints, 
including a complaint I filed as recently as 2(K)6, and it continues to take adverse action and 
discriminate against me. For example, in 2005 the liSD.A falsified documents in its effort to 
foreclose on my home. Upon receiving a notification that USDA intended to accelerate my loan, 

I promptly filed a NAD appeal. In preparations for the NAD hearing, I requested copies of 
certain forms, which are each required by to be completed prior to notifying a producer that the 
loan will be accelerated to determine "if the account qualifies for acceleration.” in order to 
ensure that USDA does not elect to accelerate loans in an arbitrary or capricious manner. The 
Fanil Loan Manager never completed the required form. 

The copy of another forni FSA provide me was also purportedly signed and dated by the 
Farm Loan Manager on September 22, 2005. However, this document’s content references both 
a meeting that was not held until October 20. 2005 and an appeal that was not filed until October 
25, 2005. It is apparent that the form was either altered or falsified. (See attached Second 
Supplemental Declaration of Guadalupe L. Garcia Jr.) 

The USDA has taken the position that, for purposes of establishing common issues of law 
or fact for class certification, our attorneys are entitled to review only USDA’s centralized 
computerized databases. We are advised by our attorneys that such databases are absolutely 
iLseless as tools for auditing USDA’s lending practices, and that the Justice Department lawyers 
handling the case readily concede that fact. For example, the regulations set forth a number of 


- 8 - 



29 


eligibility criteria for participation in L'SDA farm credit programs, and USDA is required to 
advise a borrower of the reason why the borrower's loan application is denied. Yet, when USDA 
rejects a loan application, it does not retain in its centralized databases even the ostensible reason 
why the loan is denied. For a department that collects and maintains as much data as USDA 
does, there is simply no excuse in an age of high-powered computers and software applications 
for USDA not to maintain in a user-friendly, readily accessible databa.se information .sufficient to 
conduct meaningful and relatively inexpensive audits of its lending functions. It appears that 
USDA deliberately chose to maintain and expand its archaic network, in the 1 990s rather than 
secure up-to-date technology. It seems that USDA does not w'ant to know what is happening in 
its local offices. Until steps are taken to insure transparency with respect to the actual operation 
of USDA farm credit and non-credit benefit programs, no amount of regulatory reform insure 
that the well-documented discrimination that has plagued USDA for decades is finally rooted out 
once and for all. A critically important step in rooting out that discrimination is to finally 
achieve the accountability which modem technology easily permits. 

Finally, let me offer a few closing comments. While we seek to be compensated for past 
injuries inflicted upon us by USDA. a much more important purpose of our litigation is to fix 
once and for all the system for determining eligibility to participate in farm credit and non-credit 
benefit programs and process by W'hich the administrative complaints of discrimination processed 
and investigated by USDA’s Office of Civil Rights. I speak on behalf of many thousands of 
Hispanic farmers throughout the country, when I say that we love fanning and want to make 
certain that our children and our children's children who wish to follow in our footsteps as 
farmers and ranchers have the opportunity to do so. In fact the number of Hispanics interested in 
beginning farming is growing. However, unless the system is fixed and USDA's w’eli- 


- 9 - 



30 


documented discrimination eradicated once and for all, that opportunity either may well not exist 
or else a few years from now we will be back in court once again seeking to remedy ongoing 
discrimination. 

I sincerely believe the eradication of discrimination within the USDA is possible and that 
Congress has a definite role to play in doing so. For example. Congress can be instrumental in 
{ I ) mandating greater accountability w)th respect to the operation of liSDA credit and non-credit 
benefit programs, (2) developing objective scoring criteria for credit and benefit eligibility, (.3) 
reducing discretion and the potential for conflicts of interest on this part of local officials, (4) 
mandating greater accountability and tran.sparency in connection with the recordkeeping 
associated with farm credit and non-credit benefit programs, and (5) insuring that USDA's Office 
of Civil Rights process and investigate the discrimination complaints of all producers in a 
thorough and timely fashion. At the core of this effort must be a commitment revamping data 
collection and processing within USDA to permit efficient and cost effective auditing of the 
administration of its farm credit and non-credit farm benefit programs. Nearly 1 S years ago in 
1990 this committee complained that USDA’s record keeping prevented it from properly 
exercising its oversight function. Unless Congres.s mandates that changes be made in this 
process. 1 am afraid that more years will pass and Congress will still not be able to exercise 
properly its lawful oversight function and USDA di.scrimmalion will continue unabated, in sum, 
insuring accountability and transparency in the administration of USDA's farm credit and non- 
credit farm benefit programs and a properly function Office of Civil Rights w'ill benefit all 
farmers who seek fair and equal access to farm credit and non-credit benefit programs. 

Chairman Towns and Ranking Member Bilbray, this concludes my prepared testimony. 
Thank you very much for the opportunity to testify before this subcommittee. 


- 10 - 



31 


Supplemental Declaration of Guadalupe L. Garcia Jr. 


I, Guadalupe L. Garcia ir.. hereby stale and declare the following; 


1 . My date of birth is October 23, 1943, and 1 am over the age of 1 8, Hispanic, and a United 
States citizen. My mailing address ts 9303 N. Dona Ana Rd., Las Cruces, N.M. 88007 

2 . 1 am a third generation lifetime farmer and have been farming since 1 was eight years old. 

1 also have a Bachelors of Science Degree in Agronomy and a Masters ot Science 
Degrees in Agronomy and Plant Physiology from New Mexico State University. 

3. My father, brother, and 1 farmed together a.s (}.,\. Cjarcia and Sons Farm. We produced 
chili, onions, lettuce, cotton, pecans, alfalfa, and hay. We owned two farms in Dona Ana 
County, NM, one with 550 acres and the other with 78 acres of land. We also leased land 
occasionally for our farm opcralion. 

4. Throughout the 1 980s and 1 990s. we applied repeatedly for various types of programs 
with the Dona Ana County Farmers Home .Administration (“FmH.A") and its successor 
Farm Service Agency (“FSA”). In response to the blatant discrimination that we 
experienced each time we applied for a loan, 1 filed discrimination complaints with the 
Office of Civil Rights (“OCR") on several different occasions. The OCR never 
investigated or even responded to any of these complaints, 

5. During this same time period many other local Hispanic farmers and ranchers 
experienced similar blatant discrimination perpetrated by FmH.A the FSA and also filed 
separate discrimination complaints. To my knowledge, the OCR failed to respond to any 
of these complaints. 

6. In approximately August of 2000 the USD.A headquarters m Washington, D.C., sent Mr. 
Antonio Califas along with a five-person team to Las Cruces ostensibly to perform a civil 
rights investigation. Mr. Califas and his team spent a week reviewing loan files in the 
Dona Ana County FSA office. 

7. Over the following several months, Mr. Califas made three trips to the Las Cruces area to 
continue his investigation. As president of the Hispanic Fanners and Ranchers 
.Association, Inc., 1 personalty met with Mr. Califas and at his request 1 arranged meetings 
for him to interview local Hispanic farmers and ranchers. 

8. During one of his visits, Mr, Califas told me that he had discovered evidence of 
di.scrimination against Hispanic farmers and ranchers that w'as worse than the 
discrimination that he had seen with respect to black farmers in local county offices in the 
deep South. 

9. During bis last visit to Las Cruces, Mr. Califas lold me that be had been ordered not to 
conduct any further interviews of Hispanic farmers and ranchers. For approximately five 

1 



32 


days, Mr. Califas sat in his room at the Las Cruces Hilton awaiting further orders, while 
the many Hispanic fanners I had scheduled to meet with him had to be told to go home. 
Ultimately, he returned to Washington without conducting any further interviews. 

10. Since this abrupt termination of Mr. Califas’ investigation, we have not received any 
further information regarding the status of our discrimination complaints, or whether the 
investigation will ever be continued. These discrimination complaints remain 
outstanding to this day. I understand that since that time the USDA has refused to release 
Mr. Califas’ s aborted investigation despite repeated requests by Congressman Reyes. 

1 1 . .After ignoring the discrimination complaints I filed over a span of twenty years, I remain 
sorely disappointed that the first time the OCR decided to commence any type of civil 
rights inquiry in Dona Ara County USDA ordered the investigators not to complete the 
investigation. 

12. On February 1, 2006, 1 filed a discrimination complaint after the FSA intentionally 
falsified documents to accelerate my loan. Approximately six months later, after counsel 
had made over a dozen phone calls to the OCR inquiring of the status of my complaint, 
OCR finally sent a letter stating that my complaint was “being reviewed to determine 
whether it should be accepted in [OCR’s] administrative complaint process.” 

1 3. USDA continues to invite Hispanic farmers and ranchers who feel they have been 
discriminated against to file complaints with the OCR. While 1 personally know of many 
farmers who have filed and who continue to file timely discrimination complaints with 
meritorious claims, I am not aware of a single case where the OCR has fully investigated 
the complaint and offered the farmer any remedial relief. 

1 4. While the OCR no longer remains literally dismantled as it was in the early 1 980s and 
1990s, it continues to ignore its regulations that require it to investigate discrimination 
complaints. 

1 5. Thus far the OCR has both failed to show any signs of successfully tenninating 
discriminatory practices within FSA or of investigating discrimination complaints. 


I declare under penalty of pcijury that the above fifteen paragraphs are true and accurate 
to the best of my personal knowledge. 


Date 


.Ik 

Guadalupe L. G^ia Jr. 


2 



33 


Second Supplemeniai Declaration af Guadalupe L. Garcia Jr. 


1, Guadalupe L. Garcia Jr., hereby state and declare the following: 


1 . My date of birth is October 23, 1 943, and J am over the age of 1 8, Hispanic, and a United 
States citizen. My mailing address is 930.3 N. Dona Ana Road, Las Cruces, New Mexico 
88007. 

2. I am a third generation lifetime farmer and have been farming since I w'as eight years old. 

I have a Bachelors of Science Degree in Agronomy and a Masters of Science Degrees in 
Agronomy and Plant Physiology from New Mexico State University. 

3. 1 continue to farm fulltime today. 1 grow chili, onions, lettuce, broccoli, cabbage, sweet 
com, cantaloupe, watermelon, pima cotton, pecans, alfalfa, and Sudan grass. While I 
currently lease 60 acres, 1 am in the proces,s of making the nece,s.sary arrangements to 
lease 20 more acres. 

4. While the United States DepaP.ment of Agriculture (“USDA”) has not investigated any of 
my numerous discrimination complaints, including the complaint filed this year, it 
continues to take adverse action and to discriminate against me. Most recently, the 
USDA has falsified documents in its efforts to foreclose on my home. 

5. On September 22, 200,3 Mr, Gary L. Miller, a Roswell. New Mexico, Farm Service 
Agency (“FSA") Farm t.oan Manager, sent me a “Notification of Intent to Accelerate or 
Continue Acceleration of Loans and Notice of Your Rights” letter. On October 25, 2005 
I filed a request for a National Appeals Division (“NAD”) appeal, in preparation for the 
NAD hearing, on November 2. 2005 I requested a copy of Form FSA-580, “Primary and 
Preservation Loan Servicing Checklist” and FSA-581. 

6. Mr. Miller’s November 3, 2005 reply included a copy of FSA-580 but no copy of FSA- 
581, because apparently FSA-.581 had not yet been completed. Notice FLP-372 clearly 
requires that both FSA-580 and FSA-58 1 be completed prior to notifying the producer 
that the loan will be accelerated to determine “if the account qualifies for acceleration". 
The primary purpose of FLP-372 is to ensure that FSA does not elect to accelerate loans 
in an arbitrary or capricious manner. Mr. Miller began the acceleration process without 
completing the requisite form FSA-581 . 

7. The copy of form FSA-580 that FSA provided me was also purportedly signed and dated 
by Mr. Miller on September 22. 2005. However, this document’s content references both 
a meeting that was not held until October 20, 2005 and an appeal that was not filed until 
October 25, 2005. It is apparent that these forms were either altered or falsified. 


I 



34 


I declare under penalty of peijury that the above seven (7) paragraphs are true and accurate to the 
best of my personal knowledge. 




35 


Mr. Towns. Thank you, Mr. Garcia. 
Mr. Givens. 


STATEMENT OF PHIL GIVENS 

Mr. Givens. First of all I feel honored being here. I am from 
Oklahoma. I am a bilingual Native American/African American 
farmer. I have had the misfortune in my lifetime having to deal 
with two Federal agencies based on where I live and my race and 
ethnicity. From 1899 to 1906, the Department of Interior Bureau 
of Indian Affairs told my grandfather and grandmother they could 
have this land in Oklahoma. To this day yet, FSA officials do not 
know how to perfect liens on restricted tribal trusts, simple fee al- 
lotted lands. 

In 1988 USDA and the Department of Interior entered an inter- 
agency agreement. For 10 years, I have showed OGC attorneys — 
some of them are here today present in this room — and I asked 
them to tell me what the five types of Indian land we had in Okla- 
homa, and in that initial meeting they couldn’t. Since then, they 
have learned the five types, but what has killed us in Oklahoma 
among Native American farmers is that we have USDA employees 
that can’t read. Why, I don’t know. I told an employee that and he 
said I was a racist, hostile farmer. I said, what part of 7 CFR 
1901.651 do you not understand? It says Indian outreach. It didn’t 
say Black, Hispanic, it says Indian outreach. 

I seem shocked. In 1996, I was right here in front of you all tell- 
ing you all the same thing, and here we are today. I can’t go down 
and mortgage my land to the bank, because I have to get approval 
from the BIA. In 2000, USDA — Senator Glickman, Oklahoma is on 
an action plan right now. We can’t even vote in the county commit- 
tee elections, because our land hasn’t been reconstituted, tracked, 
and put in the system, so we can get a ballot to vote. Hell, if I 
could vote I would have a pow-wow, a hog-calling contest. I would 
be sitting on the county committee. 

We have no Native American representation on the county com- 
mittee. The one that we had on the county committee this Federal 
Government sent to Baghdad, and because he missed two county 
committee meetings over in Baghdad and got shot — they threw him 
off the county committee because he missed two meetings. 

I mean, I am not getting emotional, but I am upset. Retaliation 
and reprisal — I had a State director bar me from USDA offices. 
OGC attorneys went to Oklahoma. One of them is sitting here be- 
hind me right now. Marlin Barts, the regional conservationist. The 
only reason why they said they barred me from the office is that 
I had access to all the top USDA employees in Washington, DC, 
and I knew more than they did. I am probably the only farmer that 
USDA has sent to school to do ethics training. Civil Rights train- 
ing, 195 l(s) training. Primary loan servicing that Mr. Garcia didn’t 
get, they taught me how to do it. Yet, we still can’t get a substan- 
tial number of Native Americans loans. 

One of the things that really upsets me, we have killed our kids. 
We have had to fly up here and ask about scholarships, intern- 
ships. How do we meet the White House diversity? Make USDA 
look like this country. We have all the tribes in Oklahoma. Forty- 
seven Indian tribes are located in Oklahoma, yet we don’t have a 



36 


1994 Indian college, so we are missing some of those congressional 
dollars. 

There was retaliation and reprisal that came close to me. I mean, 
it is rampant. If you go in the office and ask questions, you are la- 
beled a troublemaker. 

One of the things I would like to see is OGC attorneys removed 
from any part of the Civil Rights. Our past Civil Rights Directors 
had to butt heads with them. Vernon Parker was Assistant Sec- 
retary for Civil Rights. We have had OCC lawyers tell them what 
to do, and there needs to be a process, a mechanism, that would 
streamline these complaint processes. 

Complaints are trashed and thrown away. We have had CAO 
people ask me how you came up with all these complaints. We 
were smart enough to keep copies of them. When we file a com- 
plaint, we fly up here and go to the Reporters Building. I get a let- 
ter the next week saying they have thrown out the complaint, be- 
cause they never received it, yet they signed for it. There were 176 
Civil Rights complaints that were thrown out this year that I per- 
sonally flew up here and hand-carried, based on the 2000 compli- 
ance review, the 1996 compliance review, and the 2003 action plan 
Oklahoma was put on. 

I just don’t see how it can end unless Congress jumps in here, 
interviews farmers, brings the good USDA employees to the table, 
and keeps their bosses from firing them when they step up to the 
plate to try to help minority farmers like me. 

Thank you. 

[The prepared statement of Mr. Civens follows:] 



37 


HOUSE OF REPRESENTATIVES 


COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 
Testimony of Phil Givens 
May 14, 2008 


INTRODUCTION 

1 am a bilingual, African-Native American farmer from Tahleqiiah, Oklahoma. I have 
farmed for 26 years and operate on 1500 acres of land in four counties. Oklahoma has 
the second largest Indian population in the country and the four county area where 1 farm 
-Adair, Cherokee, Delaware and Muskogee - the highest concentration of Native 
Americans in Oklahoma. For the last 26 years I have traveled from Oklahoma to 
Washington, DC to represent myself and more than 1,760 farmers from eight different 
tribes in Indian country. I have represented farmers from Oklahoma, Kansas, Missouri 
and New Mexico, During those years I have participated in USDA training on farm 
loans, rural business, conservation, ethics and civil rights. In 2000, 1 received the 
Outstanding Small Farm Operator of the Year Award from USDA and in other years 
I have received awards from GIPSA, ,AMS, and Food Inspection Services. 1 also 
represent two Indian schools: Cave Springs and Oaks Schools. 

BACKGROUND 

It is important to understand that Farm Services Agency Offices will not serve most 
Native Americans who visit or schedule appointments for services. Farm Services 
Agency in Oklahoma will not register most Native American farmers in their database. 



38 


In 2000, the USDA Civil Rights Office found that FSA did not provide county committee 
election ballots to Indian landowners; did not provide training to staff to process civil 
rights complaints; had not implemented the Indian Outreach Program required by 7 CFR 
Part 1 90 1 Subpart N and 7 CFR 1 90 1 .65 1 ; had not collected and maintained eligibility 
and participation data and that county office employees required extensive training. All 
of these conditions and violations continue to exist and I will address these issues in my 
testimony. Similar violations were reported for Native Americans in South Dakota. 


FAILURE TO ENROLL INDIAN LAND IN THE FSA DATABASE 

The implications of this failure to enroll native land in the FSA are disastrous and 
cyclical for Native Americans. NCRS is involved in this process when they as they have 
many times in Oklahoma refused to provide a conservation study or plan to enroll native 
land as required by the 1985 Farm, Food Security Act. If your land isn't enrolled in the 
FSA database, you receive no notices from FSA about programs or loan opportunities. 
Equally important, you are not allowed to participate in county elections. 

Since FSA will not enroll native land, they also will not provide services to Native 
Americans. Ironically when natives rent their land to white farmers, white farmers are 
allowed to enter the land in the database and participate in USDA programs, 

FSA will not provide members of the fourteen counties that comprise the Cherokee 
Nation service when they go to their offices. A few services are provided at the tribal 
headquarters but in the past if you farmed non-tribal land no services were provided to 


2 



39 


Native Americans in the county offices. Members of the nation are usually not allowed 
to participate in County elections because tribal land is not in the FSA database. 

COUNTY ELECTIONS 

From 1999 to 2000, Native Americans in northeastern Oklahoma filed at least 76 
complaints against the FSA County Election Process. To this date none of those 
complaints have been resolved. In 2004, Native Americans never received election 
ballots. Complaints were filed and USDA placed Rick Fowler, a member of the military 
on the Cherokee County Committee. However, the County Committee dismissed Rick 
Fowler because he missed several meetings when he had to fulfill his military duty. 

Native American land is still not entered in the database. Natives are still not informed 
about USDA programs in Indian country and they cannot fairly participate in County 
elections in counties where they comprise almost fifty percent of the farming population. 
In 2005, 1 met with the FSA administrator about county elections because the few native 
farmers who were allowed to participate were required to submit ID cards showing that 
they were tribal members. No identification requirement exists for white farmers. 
Wyman Thompson, the Superintendent of Oaks Indian School, filed a written complaint 
about the practice; there has been no response to his complaint to this day. 

COMPLAINT PROCESS 

In 2004, 1 received a favorable decision to a complaint of discrimination against the 
Indian Livestock Program. Rather than implement the decision, Assistant Secretary 


3 



40 


Vernon Parker decided to have an outside contractor review the findings of his own 
office. He contracted a Northern Virginia firm, Compucon Inc. of Alexandria, Va. to 
reinvestigate the case. After spending several months in Oklahoma and billing the 
government $100,000.00, Compucon found again that USDA discriminated against me. 
Now three years later, USDA has not responded to my requests for settlement. Native 
American farmers are not allowed full participation in the Indian Livestock Program. 
Native American farmers are financially disadvantaged. USDA knows we do not have 
the resources to run to federal court every time they discriminate and exclude us from 
participating in federal programs. 

Native Americans in Oklahoma, Kansas and Missouri have filed 15 complaints about the 
failure of USDA to provide outreach since the 2000 Compliance review reported that 
there was inadequate outreach to Native Americans. There has been no further review 
and little outreach beyond what 1 have been able to arrange at Oaks School. There has 
been no finding on those complaints. Yet in 2004, USDA threw all fifteen complaints 
out because the employees in the Office of Adjudication do not understand civil rights 
law or anything about the USDA farm programs and how they are intended to operate. 
The bare truth is that USDA outreach and farm service to Native Americans in Oklahoma 
is dysfunctional. Most Native Americans are refused service. They are lied to and told 
that there are no loans if the farmer does not articulate the exact name for the specific 
loan program. When I am able to return to the office with most of these farmers they are 
provided service. During this present spring, I have assisted about 200 farmers to obtain 
loans after FSA had denied them an application. 


4 



41 


RETALIATION 

Representing Native American farmers in Oklahoma has created personal problems when 
USDA has retaliated against me. In 2003, 2004, and 2005 I filed complaints based on a 
2000 compliance review that found that NRCS had provided inadequate outreach to 
Native American farmers about EQIP, Fletcher farms and other programs. I had gone in 
to discuss the specific programs that we were eligible for because NRCS had sent me to 
training and I had received a certificate for successful completion of this program. 

NRCS responded by barring me from their offices in Oklahoma, Kansas, and Missouri. 
This exclusion was devastating because in these states, most NRCS, FSA and RD offices 
are housed in the same centers. 

When NRCS baixed me from their offices they barred me Prorn visiting FSA and RD 
offices as well. I had to retain counsel to regain access to these offices. When we met 
with mediators in Tulsa, the only reason that they gave for excluding me from the offices 
was that I knew more about the programs than they did and I made them feel inadequate. 
There were no reports of threatening or disruptive behavior, racial slurs or profane 
language. For no reason, USDA had excluded me from participating in federally 
financed programs. Federal employees in the field offices had to call headquarters to 
state that I had engaged in no disruptive behavior in their offices and the restrictions were 
not justified. The USDA Assistant General Counsel Tami Trost managed as well as 
defended this discriminatory and unconstitutional treatment by NRCS. 


5 



42 


RECOMMENDATIONS 

• Provide effective outreach and technical assistance to Native American 
farmers and fully implement the 1988 Interagency Agreement between 
USDA and the Department of Interior and fully implement 7 CFR 1901.651. 

• Increase scholarships and career days for Native Americans. 

• Train USDA employees on how to do business in Indian country. Many 
eligible Native Americans are unable to obtain loans from Rural 
Development because USDA personnel does not know how to perfect a lien in 
Indian country. 

• .Attorneys in the USDA Civil Rights Office should receive civil rights 
training. The Office of General Counsel hinders and impedes the 
department's ability to process civil rights complaints and should not be able 
to deny complainants their rights because they are ignorant of civil rights 
provisions. 

• Restore to the Office of the Assistant Secretary for Civil Rights the authority 
to settle civil rights complaints. A recent delegation of authority makes the 
process more cumbersome than ever to have a complaint resolved when 
there is a finding of discrimination. 

• Restore basic due process and require the Office of Adjudication to state the 
reason a case is dismissed so that the farmer may proceed to federal court if 
he is able to. OCR should not be able to send a letter three years after a case 
was filed and state that the case is dismissed because they have nut 
investigated it. 

• Since they are dysfunctional and thousands of cases are pending require 
USDA to establish a special process to resolve these cases and provide 
farmers the right to representation and attorney fees. 

• Protect USDA employees who are willing to provide service to small farmers 
from retaliation from the Office of General Counsel and others at USDA who 
do not support small farm.s. 


6 



43 


Mr. Towns. Thank you very much. 

Let me just say to the Members that we have three votes, and 
I would like to adjourn until 4:15. I hate to do this, but we have 
to vote around here. If we don’t, they make a big issue out of it 
back in your District. So I want to pause until 4:15. So, we will ad- 
journ until 4:15 and come back and start. We will start with you, 
Mr. Lucas. 

The committee stands adjourned until 4:15. 

[Recess.] 

Mr. Towns. The committee will come to order. 

Mr. Lucas. Mr. Chairman, I would like to enter a small package 
into the record. 

Mr. Towns. Without objection. 

Mr. Lucas. Thank you very much. 

[The information referred to follows:] 



44 



MEMORANDUM 

TO; 

LAWRENCE LUCAS 

COALITION FOR MINORITY EMPLOYEES 

FROM: 

CONCERNED USDA EMPLOYEES 

SUBJECT: 

ISSUES FOR THE COALITION TO ADDRESS 
WITH THE HONORABLE MARGO MCKAY 

DATE: 

NOVEMBER 15, 2006 


It is our collective belief that the USDA Office of Civil Rights (CR) could and should be 
the federal “flagship” program in the metropolitan area for civil rights, and the model for 
other federal agencies to emulate. This is especially true in light of the fact that the 
USDA Graduate School is highly recognized and respected for its excellence in 
education. However, due to a long history of mismanagement, this is not the case. 

As civil rights professionals, we take pride in the mission of CR, even though we are 
suffering as a result of CR management’s bullying and abuse. We are painfully aware of 
the negative reputation that CR has acquired during the last few decades. We would 
sincerely like to change this perception and have concluded that the overriding problem 
with CR has been in its management and vicariously it’s enforcement. In the last few 
years interested parties have issued report after report that have identified glaring 
deficiencies within CR. CR has a widely recognized and well-established pattern and 
practice of mismanagement, as demonstrated by the numerous substantiated reports of 
gross mismanagement, (attachment 1) 

Based upon the continuous feedback concerning CR performance that CR management 
have been given throughout the years by interested parties, one would think that 
responsible officials would have taken all the necessary actions to “fix the problems.” 
The problems identified in these reports pointed critically to CR management as being 
the largest part of the problem. It appears that CR management has instead, projected 
their own failures onto the CR employees and treats the employees as if they are the 
problem instead of looking inward, CR management is apparently unwilling or incapable 
of recognizing that as the leaders of this organization, they must beat the brunt of the 
responsibility for how CR is managed. 

Based upon the foregoing, we have concluded that forming a Union, talking to the 
leadership of the Coalition for Minority Employees, and lastly going to Nancy Pelosi is 
our last refuge for obtaining fairness and equal opportunity in CR. It is our purpose and 
hope that through these actions, CR will someday become the organization that we 
collectively believe that it can be — a shining example of fairness, equality and 
opportunity that is respected as a model program for all to follow. 



45 


The following issues underscore our previous assertions. While there are a number of 
other issues that need to be addressed within CR, the issues that we presently raise in this 
document deserve immediate attention and redress.*^ 

As an aside, on June 6-7, 2006, the Complaints Adjudication Division (CAD) and 
Program Complaint Division (PCD) held a joint retreat. On the last day of the retreat, 
management requested a list of concerns from the staff that they would address. This list 
of concerns was presented to management as requested, however despite management’s 
representations, these concerns have never been addressed, (attachment 2) 

PERSONNEL ISSUES 

CONNIE BAILS 

Clyde Thompson hired Connie Bails as the Deputy Director for CR after he determined 
that Sadhna True was not as firm with the employees as he had hoped. Connie Bails was 
hired to “get the employees in line” because Clyde felt that the employees were “out of 
control.” Clyde felt that Comiie’s “iron fist” management style was crucial to the 
accomplishment of this mission. 

Shortly after Connie Bails arrived she had several discrimination complaints filed against 
her. Coimie Bails quickly came to be known for her racist comments such as calling 
people “niggers,” asking light-skimied employees if they think that they are better than 
other blacks because of the color of their skin, making public declarations that wheel- 
chair bound employees know they can walk, why don’t they stop trying to fool people, 
and she has also told employees to watch out for that white man he will do you in, when 
referring to Caucasian male employees. She has openly complained to employees about 
other employees who in her opinion are too fat, too dumb, too sneaky, or think that they 
are smarter than everyone else. She has commented several times about employees who 
smoke too much, thereby requiring frequent breaks, and has referred to women in the 
office who wear skirts that she deems to be too short as “hoochi-mammas.” Several 
employees who Connie Bails made these discriminatory remarks and comments to have 
provided statement and affidavits regarding these remarks. However, because these 
employees fear extreme retaliation these statements and affidavits were not included in 
this report. These discriminatory statements taken in conjunction with the actions taken 
against the persons who these statements were made clearly violate Title VII, which is 
ironically one of the very laws that the Office of Civil Rights is charged with enforcing. 

The Connie Bails Clyde Thompson approved campaign of hostility, reaches all levels. 
She has openly attacked Administrative Support staff. Equal Opportunity Assistants, 
Equal Opportunity Specialists, Human Resource Specialists, Management Analysts, and 
even management. Connie Bails is known for pitting employees against one another. 


'' All of the planned management actions stated herein have been conducted at the direction and consent of 
Clyde Thompson, Associate Assistant Secretary for Civil Rights, and Sadhna G. True, Director, Office of 
Civil Rights, and presumed to have been conducted with the full knowledge and approval of Annabelle 
Romero, Deputy Assistant Secretary for Civil Rights. 


2 



46 


pitting managers against other managers, pitting managers against employees and 
employees against managers. Connie Bails constantly reminds CR employees that she 
has a psychology degree, and her specialization is group dynamics, which results in her 
being well versed on how to manipulate groups.^ 

The harassment and hostility against employees by Connie Bails has been exercised 
through individual meetings, group meetings, and hallway confrontations. Connie Bails 
has intentionally held up the work of the Administrative Support staff resulting in 
problems for the supervisors of the Administrative Support staff. Coimie Bails has also 
on more than one occasion refused to sign or withheld the time and attendance reports (T 
& As), for the divisions where she has been an acting chief for no apparent reason. As a 
result, Betty Stiehm of Human Resources has often called and inquired as to the 
whereabouts of T & As. 

Connie Bails takes and/or fails to take personnel actions in violation of the merit system 
principles found at 5 U.S.C. § 2301. These prohibited persoimel practices consist of: 
discriminating against employees based on race, color, religion, sex, national origin, 
disability and marital status. Connie Bails gives unauthorized preferences and advantages 
to favored employees so as to improve the prospects of her favorite employees, and injure 
the prospects of other employees, (attachment 3) 

Connie Bails has strict requirements regarding time and attendance and employees 
leaving the building for breakfast and lunch that she does not apply equally across the 
board. Connie Bails looks the other way when her favorite employees are late or leave 
the building in the mornings for breakfast, or take long lunches. The.se favorite 
employees are also not required to fill out leave slips when arriving to work late or when 
leaving the building at 9:45 to go shopping. 

We, the CR employees strongly feel that Connie Bails has been extremely bad for this 
organization. Her open discriminatory comments with respect to the race, color, national 
origin, economic status, familial status, weight, background and even personal criticisms 
against a number of CR employees is staggering and inappropriate for any office. 
However, it is even more unprofessional and inappropriate for CR. 

The Office of the Assistant Secretary for CR began the implementation of 13 significant 
civil rights related initiatives in October 2003. The purpose of these initiatives among 
other things was to reduce complaints and to change the culture within CR. Initiative 1 2 
is one of the 13 Initiatives slated for implementation by all of ASCR. Initiative 12 
requires that CR and the Office of Human Resources Management revise and implement 
an Accountability Policy to ensure that personnel actions include specific corrective and 


^ It should be noted that since the Union has filed grievances against Connie Bails, and several employees 
have filed complaints against her, she now conducts her prohibited personnel practices under a veil of 
secrecy. Several employees have expressed that they are experiencing ongoing harassment by Connie Bails 
via Carol Sanders GS-i4, Carmen Velasquez GS-14, Michelle Eiland GS-14, Maurice Thompson, Ted 
Gutman, and other CR managers. 


3 



47 


disciplinary measures for any USDA employee who violates antidiscrimination laws. 
We are therefore asking for the removal of Connie Bails from CR. It should be noted 
Sadhna True has direct knowledge of these events and has done nothing to address the 
matter, (attachment 4) 

CAROL SANDERS^' 

Carol Sanders is a bona fide beneficiary of the prohibited personnel practices of Connie 
Bails. Connie Bails arranged for Carol Sanders to be the Acting Team Leader for PCD 
from July 2005 to March of 2006. Connie Bails continued this arrangement despite the 
requests of several senior investigators that the Acting Team Leader position be rotated to 
allow each of the investigators to receive the same developmental opportunity as Ms. 
Sanders. Connie Bails adamantly refused this request, stating that she wanted Carol 
Sanders to continue as the Acting Team Leader, because she did not like rotations. 

Here, in violation of 5 U.S.C. § 2301, Connie Bails gave Carol Sanders, her most 
favored employee, an unauthorized preference and advantage, which improved the 
employment prospects of Carol Sanders, and injured the prospects of other employees. 
In addition, Connie Bails gave Carol Sanders an advantage in this employment 
recommendation based on factors other than personal knowledge or records of job related 
abilities or characteristics. 

Connie Bails was not the selecting official for the Team Leader position, however she 
was deeply involved with the selection process, along with Kenneth Baisden (the at that 
time new Chief of Investigations) and Sadhna Tnie. When the Team Leader position was 
announced and a selection made, it was no surprise to anyone that Carol Sanders was 
selected for the position since Connie Bails gave Carol Sanders an unfair advantage over 
other qualified applicants by allowing Carol to act in the position of Acting Team Leader 
for over a year. Under Sadhna G. True, Carol Sanders also served as Acting Team Leader 
for over one year. As a result of management’s actions Carol Sanders’ prospects for 
being selected for the position improved. Carol Sanders was given an unfair advantage 
over the other employees/applicants because she possessed more supervisory experience 
than the other qualified employees/applicants who had been denied the developmental 
opportunity of Acting Team Leader for the past two years. This is a prohibited personnel 
practice under 5 U.S.C. § 2301. 

Because her true qualifications for the job were never adequately assessed, Carol Sanders 
via Connie Bails now employs Kathlynne Ramirez GS-9 and Dorma Gaskins GS-I2, to 
review the reports of investigation of the other investigators. Carol also uses Sidney 


It should also be noted that CR management has for many years circumvented USDA’.s Merit Promotion 
policies to the extent that merit principles and policies are non-existent within CR. Instead, CR 
management has created a hostile environment that is wholly dependent upon a system of “favoritism,” i.e., 
in order to obtain training, promotions, etc., employees must literally conform to the whims and nuances of 
managers, without question, even if they are asked to perform or witness unethical or illegal tasks. These 
individuals are usually the least talented CR employees and because of this system of promotion they are 
continually promoted to the chagrin of the truly talented employees, and subject matter experts. 


4 



48 


Wiggins GS-13 to assign and review the reports of investigation. Carol Sanders employs 
Lolita Ellis to edit the work of the specialists. These are the duties and responsibilities of 
Carol Sanders as a GS-14. By utilizing other employees to do her work, Carol Sanders 
has circumvented her duties and responsibilities and has ample time to carry out the 
extracurricular harassment activities as designated by Connie Bails. 

Per Connie Bails, Lolita Ellis”'^ is currently absorbing the duties of other employees and 
thereby diluting the duties of valuable employees. It is widely recognized that when an 
employee’s duties are diluted that it has somehow been orchestrated behind the scenes by 
Connie Bails. 


EMPLOYEES ARE PLACED IN POSITIONS WITHOUT THE POSITION 
DESCRIPTION AND/OR POSITION BEING PROCESSED AND CLASSIFIED 
THROUGH HUMAN RESOURCES 

Because employees are placed in positions without the vacancy announcements or 
required paperwork to detail or announce positions, opportunities are not openly available 
for all equally qualified applicants to compete and/or request details. The following 
employees are currently in positions where a vacancy announcement was not posted: 
Kirk Baylor, Susan Notar, Rhondi Hammond Barbara Lincoln-Smith and Maurice 
Thompson. Because these positions were not advertised other qualified employees were 
not given an opportunity to compete for these positions. It should be noted that Sadhna 
True placed these employees in these positions. We want these prohibited personnel 
practices to cease and desist. 


NON-SUPERVISORY GS-I4s ARE CURRENTLY MANAGING AND 
SUPERVISING FOUR DIVISIONS 

There are four non-supervisory GS-14s who are currently supervising employees: 
Maurice Thompson, Data Management and Customer Service Division; Calvin Gibson, 
Accountability and Resource Management Division; Kirk Baylor, Civil Rights Service 
Division, and Jean Parker and Anna Stroman, Equal Opportunity/Compliance Division 
(EOCD). These non-supervisory GS-!4s are daily performing management functions 
such as: signing T & A’s and leave slips, denying leave, assigning work, rating 
employees, providing performance evaluations and disciplining employees. For the 
record Sadhna True placed these employees in these positions, (attachment 5) 


^ This is especially disturbing in light of the fact that Connie Bails allowed Carol Sanders to be the Acting 
Team Leader in PCD from July 2005 to March of 2006. 


5 



49 


GS-9 EMPLOYEES ARE ASSIGNED AS TEAM LEADERS OVER GS-13 
EMPLOYEES ON SPECIAL PROJECTS 

Jeffery Carr who is a GS-9 is continuously placed in lead positions over employees who 
he has less seniority. Jeffery Carr is currently the Team Leader on the iComplaints 
Special Project within PCD over Deborah Davis GS-13 and Rhondi Hammond GS-12. 

Kathlynne Ramirez GS-9 was assigned as Team Leader for the “Parts” team that was 
designed to overhaul the intake process. Working under Kathlynne are Darrell Brown 
GS-13 and Shawntey Fox GS-13. These assignments were made with the full knowledge 
and approval of Sadhna True. 


TRANSFERS 

Certain CR employees have been allowed to transfer if they were experiencing difficulty 
within their division, their work and/or with their supervi.sor. These transfers were 
allowed for various reasons. However, the transfer requests of other employees are 
routinely denied, (attachment 6) 

The only employees who are allowed transfers are those employees who are management 
favorites. The following employees have been allowed transfers: 

Barbara Lincoln-Smith was unofficially allowed by Sadhna True to be transferred from 
the Employment Complaints Division to the Data Management and Customer Service 
Division. Barbara Lincoln-Smith is currently permanently in the position and has been 
attending management training presumably for the GS-14 position that will soon be 
announced. This vacancy was not announced. 

Rhondi Hammond was unofficially allowed to transfer from the Civil Rights Services 
Division to the Program Complaints Division because she did not get along with her 
supervisor Larry Newell. 

Sversha Kumar was allowed to transfer from the Equal Opportunity and Compliance 
Division to Outreach because she did not like the way that her supervisor Skip Day talked 
to her. 

The following employees were denied transfers without explanation: 

Gayle Petersen 
Molly Cortez 
Rosetta Davis 


6 



50 


CAD SPECIALISTS WORK ON A PRODUCTION BASIS BUT ARE NOT 
GIVEN CREDIT FOR 50% OF THE WORK THEY COMPLETE WHICH 
PROHIBITS THEM FROM SATISFYING THE QUOTAS SET FORTH IN 
THEIR PERFORMANCE STANDARDS 

Ted Gutman announced in a January 2006 staff meeting that CAD Specialists would no 
longer receive credit for 50% of the work that they are required to perform. Thus, CR 
management is allowing Ted Gutman to set up a system presumably designed for CAD 
Specialists to fail. By disallowing credit for 50% of the work CAD Specialists are 
required to perform the likelihood increases that employees will receive low performance 
evaluations. 

CAD Specialists are NOT given credit for: 

HUD Closures 
Withdrawals 
Settlement Agreements 
Civil Actions 
AJ Decisions 

Compliance Final Agency Decisions 

CAD Specialists are ONLY given credit for: 

Program Final Agency Decisions 
Employment Final Agency Decisions 

When queried about the new perfonnance evaluation method, Ted Gutman emphatically 
announced that he felt that the work involved in reviewing and writing Non-compliance 
Final Agency Decisions, AJ Decisions, Civil Actions, Settlement Agreements, HUD 
Closures and Withdrawals was straightforward and uncomplicated. As such, he stated 
that it was his decision that this work did not merit being counted. This is an unfair labor 
practice, which CAD employees would like to see discontinued. Sadhna True is aware of 
this and supports this action because it will allow Ted Gutman to rate employees low and 
that is a goal of Sadhna True. 

The CAD Specialists strongly object to this practice and would like to see a return to a 
fair and balanced method of calculating the production level. In the past, CAD 
Specialists were given credit for EVERYTHING they completed. If, under this system 
credit for one Final Agency Decision were given for every five AJs completed, it would 
be a vast improvement over the current system. CAD specialists would like to be given 
credit for ALL the work that they perform, (attachment 7) 


7 



51 


It should be noted that Ted Gutman is known as a chronic complainer who spends the 
balance of his time harassing employees by sending derogatory e-mails regarding the 
incompetence of CR staff, managers, temporary personnel and it never ceases. Ted 
Gutman does not have a background in Title VI or Title VII, and attempts to discredit the 
work and ability of others so as not to draw attention to his own deficiencies, 
incompetence and lack of managerial skills. 

Based on this behavior Ted Gutman has had several hostile work environment complaints 
filed against him by women and minorities. These complaints were filed against him at 
his previous agency Animal Plant Health Inspection Service, and in his current position 
inCR. 


MAXI-FLEX POLICY OF TED GUTMAN 

On June 19, 2006, Ted Gutman, Chief of CAD announced to his staff that they would 
now be able to use Maxi-Flex. Ted Gutman’s announcement was based on a March 21, 
2005, memorandum from Clyde Thompson. In Mr. Thompson’s memorandum he 
informed ASCR employees that they would now be able to use Maxi-Flex, and that the 
morning core hours for ASCR begin at 6:30 a.m. 

Ted Gutman has overridden Mr. Thompson’s policy (with the full knowledge of Sadhna 
True) and has denied the request of some employees to begin their tour of duty at 6:30 
a.m., (even though these employees are in the office everyday at 6:30 a.m.). Ted Gutman 
is treating his staff differently from other employees within CR. Other employees and 
managers are currently allowed to arrive at 6:30 a.m. In addition, two employees were 
previously approved and had been working the 6:30 a.m. to 3:00 p.m. schedule prior to 
Mr. Gutman coming on-board. We would like to be allowed to follow Mr. Thompson’s 
policy regarding core hours, (attachment 8) 


TELE-WORK POLICY 

Under the former Director of CR David Winninghain, employees whose jobs were 
deemed portable were allowed to work from home one to two days per week. Under 
Clyde Thompson, USDA’s Tele-Work Champion, (according to USDA News), Tele- 
Work was discontinued so that “employees could devote their time and efforts to the 
Inventory/Backlog Reduction Initiative.” CR employees have not been allowed to Tele- 
Work in the three years that Mr. Thompson has been the Associate Assistant Secretary 
for CR. Since CR “no longer has a backlog” CR employees are requesting the return of 
Tele-Work, (attachment 9) 


8 



52 


TRAINING 

There is a pattern and practice of management disapproving training requests from CR 
employees. For the last three years management has requested the staff to fill out 
Individual Development Plans (IDP) and to also request any desired training. The 
overwhelming majority of training requests are denied. As a result a large number of CR 
employees have elected not to fill out IDPs or to request training. It should be noted that 
some managers are allowed to take up to two or three expensive training courses, often 
not in their field 

Employees who have been working in the Intake Division of PCD are now required to 
perform assignments in the Investigations Division of PCD. These new assignments 
entail conducting investigations, which includes interviewing witnesses, taking sworn 
statements and preparing reports of investigation. All of these duties are required to be 
completed without formal training. The CR employees are requesting management to 
honor reasonable requests for formal training for every qualified employee. 

In addition, the Administrative Support staff would like to request formal training in 
subject matters that would broaden their horizons and allow them to excel in their 
careers. Specifically the Administrative Support staff would like to request training on 
the RUMBA Travel Database System (not informal training). Connie Bails has 
instructed Diane Davis-Wright, the one Administrative Support staff employee who is 
familiar with RUMBA not to train or assist the other Administrative Support staff level 
employees who are requesting her guidance. Sadhna True approved this action. 


TUITION REIMBURSEMENT 

The Adminiistrative Support staff that are the most in need of training have routinely been 
denied requests for college courses. On the other hand, the similar requests for tuition 
reimbursement and regular training courses of management and employees favored by 
management have consistently been approved. Sadhna True has approved this action. The 
CR employees are requesting management to honor reasonable requests for tuition 
reimbursement for every qualified employee. 

LACK OF NECESSARY EQUIPMENT 

The employees in the Employment Complaint Division (ECD) do not have the necessary 
equipment to perform their jobs. The ECD employees are forced to work with outdated 
software, dilapidated monitors, printers, copiers, fax machines and telephone equipment. 
There is also a lack of adequate conference room space and furnishing. 

CAD does not have a working Xerox machine. 

The employees in the Data Management and Customer Services Division do not have a 
functioning fax machine, copier or shredder. 


9 



53 


In addition, CR employees are subject to verbal abuse and scrutiny by management when 
requesting the necessary supplies and tools to adequately perform their duties. This is 
contrary to the conditions of the other Divisions per Sadhna True. 


EMPLOYEES ARE STILL REQUIRED TO E-MAIL UPON ARRIVAL 

The employees are constantly attacked regarding their T & As as approved by Sadhna 
True. Although management denies this fact, some employees in EOCD and EEOD are 
still required to e-mail the Team Leader Anna Stroman and/or Cotmie Bails upon their 
arrival. We would like to see and end to this practice, (attachment 1 0) 

In closing, the employees would like to say that this was a nice place to work prior to the 
current group of managers. Because of their incompetence and corruption the 
environment has changed. This is a rogue group of managers who have no respect for 
laws, rules, regulations, attorneys or unions. 

As stated earlier, Clyde Thompson is the author of this current confusion and he should 
be removed. Clyde Thompson’s adventures and misconduct in his previous position at 
the Forest Service and his misconduct in his current position are well documented. The 
reason for his extreme disdain for CR employees is unknown. However, what we do 
know is that this very powerful man has done a lot of damage to a good organization, and 
if he is kept around any longer recovery may not be possible. 


10 



54 


STATEMENT OF LAWRENCE LUCAS 

Mr. Lucas. First I would like to thank you and the committee 
for taking on this very daunting task of getting to the truth about 
really what goes on at USDA. 

I would like to thank you for allowing me, president of the USDA 
Coalition of Minority Employees, to come and speak about the 
abuses, the intimidation, the racism and sexism that has been 
going on at USDA much longer than we expected. 

I wasn’t invited to the fairness hearing, and I said before Judge 
Freeman, this Pigford settlement is absent of accountability. There 
is nothing in this settlement that will promise farmers that they 
will not be discriminated in the future. I was right then, and I am 
right now. 

Other Senators have taken on this task, such as Senator Grass- 
ley, Senator Luger, and Senator Harkin. 

This long struggle with USDA is a culture of racism, sexism, in- 
timidation, and other abuses of an out-of-control agency in which 
their Civil Rights office is dysfunctional in processing and adminis- 
tration of individual complaints of employees as well as farmers. 

I come to you today after experiencing and being part of a tribu- 
nal with Congresswoman Jackson Lee. During the 2-days, we 
heard riveting testimony from farmers, from employees about the 
abuse that they have suffered at the hands of USDA. 

I am sorry to say that John Boyd and many of us sitting at this 
table were elated that we found out that we finally got an Assist- 
ant Secretary for Civil Rights. I must say today to you that Civil 
Rights at USDA is worse now than it was when we first thought 
in 2003 that we had an Assistant Secretary that was going to do 
something about this problem. 

The CRAT and CRIT reports, one of the most scathing reports 
about an agency — and, by the way, they investigated themselves 
under the Glickman administration. The Democrats did a fair job 
of getting to that, but if you take a look around, the first thing that 
this administration did with the new Assistant Secretary, their 
leadership — and I am talking about leadership that is still there in 
the Department of Agriculture to this day — they made sure that 
the CRAT and CRIT reports were taken down from their Web site. 
You cannot find one CRAT or CRIT report in the office, because we 
tried to get it and we tried to also get them to adhere to the rec- 
ommendations of that report. 

I am sorry to say, Mr. Chairman, this Department is out of con- 
trol. They express their zeal and their gall and their arrogance 
when they decided to boot out the Office of General Counsel, who 
came to investigate and audit some of the problems that we have 
been saying, John Boyd and many of us at this table and other ad- 
vocates and lawyers for farmers and employees for so many years 
how dysfunctional that office is. 

I think what happened was, they found out through their own 
channel — the way I find out information — that they realize that the 
employees were equally as fed up as the advocates. We, as well, 
have been telling the Congress and many others. So, they decided 
that they were going to shut down, and the Office of General Coun- 
sel at USDA, who will tell you years ago under J. Michael Kelly — 
who is still there today — he will tell you for years after we settled 



55 


the Pigford case, there has been no discrimination against the 
Black farmers. And, we have settled these cases at a tune of almost 
$1 billion, but this is the kind of leadership and interference by the 
Office of General Counsel that has an iron hold when it comes to 
processing. 

I have been sitting trying to resolve an individual complaint in 
the ADR stage. They take their OGC attorneys to fight little peo- 
ple, so I know what they are doing when they are trying to fight 
farmers. 

The Assistant Secretary for Civil Rights today and yesterday 
have done a poor job and has been very disappointing. I think 
there are some things that you need to know. 

The Office of Civil Rights said that they were tracking the com- 
plaint systems, the complaints of employees and farmers. I have 
been telling USDA and the Office of Civil Rights, but they stopped 
talking to us, because we weren’t telling them what they wanted 
to know. But, we have been telling the Office of the Secretary that 
in the complaint system that they tell you is working all right, the 
numbers don’t jive. 

Mr. Towns. Mr. Lucas, could you sum up? 

Mr. Lucas. OK. In summary, what I would like to see from this 
committee is to hopefully put together an advisory committee and 
put the USDA Office of Civil Rights in receivership and appoint- 
ment a board of five people, one from the Agriculture Committee, 
one from the House Agriculture Committee, one from the Agri- 
culture, one representing farmers, and one representing employees, 
because USDA cannot police itself. 

Thank you very much. 

[The prepared statement of Mr. Lucas follows:] 



56 


Testimony of 

Lawrence C. Lucas, President 
USDA Coalition of Minority 
Employees 
Before 

The Subcommittee on Government Management, Organization and Procurement The Committee on 
Oversight and Government Reform 
Wednesday, MayI4, 2008 


Good Afternoon, 

My name is Lawrence Lucas; I am President of the USDA Coalition of Minority Employees. Please allow me 
to enter into the Congressional Record these documents in support of my testimony 1 give before you today. 

Mr. Chairman and Committee members, I am not bringing good news to you today, regarding the 
administration and processing of United States Department of Agriculture (USDA) civil rights complaints filed 
by USDA employees and minority farmers of this Nation. Employees and the Nation's farmers deserve better 
treatment from USDA and others in government. 

First, let me start by telling you how USDA recently exposed its arrogance when they had the audacity to boot 
out auditors sent by the Government Accountability Ortice from USDA facilities and offices, upon learning that 
the General Accountability Office was continuing its investigation as requested by the Congress of the United 
States. We can only assume that after months of listening to many USDA employees and others that these 
auditors may have uncovered more of the truth than USDA officials wished. 

The audit was requested by many USDA employees and congressional representatives, and a diverse group of 
farmers: Hispanics, Native Americans, Black Farmers, and farmer advocates. Is it possible that persons being 
interviewed were telling the truth and that USDA officials had to prevent the auditors from obtaining additional 
evidence? Only the Genera! Accountability Office can confirm that the information gathered indicated that 
USDA's Office of Civil Rights - currently renamed by Assister Secretary for Civil Rights, Margo McKay as the 
Office of Adjudication and Compliance -- has serious problems that were not being shared with the Congress. In 
fact, it may be found that the Office of Adjudication and Compliance under the present and past leadership has 
become one of the worst abusers of civil and human rights in USDA. 

While all of these abuses continued inside USDA Civil Rights, the managers of the Office of Civil Rights gave 
themselves awards and huge bonuses for accomplishments never achieved. These awards include the 
Presidential Rank Award and the Secretary's Honor Award. Both of these awards were given for the so called 
successes of the Civil Rights Enterprise System, which was designed to track the huge number of employment 
and program complaints and generate accurate reports. USDA management wasted millions of dollars on 
tracking systems that are dysfunctional. USDA manag ement 



57 


Officials filled their pockets with tax payer dollars, while they continued to abuse USDA's civil rights process 
and sabotaged the cases Hied by employees and customers. 

To date, USDA management has reduced the civil rights processing staff from approximately 120 employees to 
less than 60^ employees. The office has been budgeted for 120 employees and given the funds to staff those 
positions. The question is ... where did millions of American tax dollars earmarked for those positions go? An 
unhampered General Accountability Office audit investigation would be able to answer that question. USDA 
officials can not be trusted to tell the truth. This Office was given additional staff, as a result of the Civil Rights 
Action Team and the Civil Rights Implementation Team reports and the Pigford Class Action law suit victory by 
the Black Farmers. 

I must also admit that the systemic discrimination by the County Committee system contributed immensely to 
the failed civil rights process for thousands of minority farmers. That process as well, continues to be 
disc riminato ry in nature towards minority fanners and others. 

1 also must admit that we all thought that establishing the position of the Assistant Secretary for Civil Rights 
would provide an avenue and an opportunity for the right person to clean up the civil rights mess at USDA. We 
expected Vernon Parker and his leadership team to bring a swift end to the racism, sexism, reprisal, intimidation 
and wide spread abuse of USDA employees and minority farmers nationwide, especially Black fanners. 1 am 
sorry to report that we were wrong. In fact, civil rights is in worse condition today than it was prior to Vernon 
Parker's confirmation in April 2003. I suspect that some Members of this Committee are just as di.sappointed. 

Much of what I have said did not randomly occur. It happened, 1 believe because all of us assumed that USDA 
had seen the light, and understood the desires of Congress to eliminate its past wrong doings. A continuous 
strong oversight process may have prevented these transgressions. Another contributory factor is that the federal 
agencies responsible for overseeing USDA civil rights i.e., the Equal Employment Opportunity Commission, 
the Merit System Protection Board, the Office of the General Counsel, the Office of the Special Counsel, 
USDA's Office of Inspector General, and even USDA’s Office of Muman Resources have all been a major and 
very disturbing part of the problem. These entities have covered-up the wrongdoings of USDA Office of Civil 
Rights mana 2 cmcnt officials, who violated the rights of employees that filed complaints or spoke out about the 
poor administration of the Office. 

What is going on in and around USDA should be considered an obstruction of justice and wrongdoers should be 
held accountable. USDA officials frequently do not tell the Congress, General Accountability office auditors or 
the Secretary of Agriculture the truth and sometimes cover- up the truth. I have had this confirmed by reports I 
have received from employees and customers, who fear reprisal and intimidation by civil rights management. 
Please tel! those of us on this panel when USDA Office of Civil Rights and 


72 employees, consisting of 7 managers and 6 employees on detail elsewhere. 



58 


officials from the Assistant Secretary for Civil Rights will be held accountable for their wrong doings. 

[ am talking about government accountability and how the accountability process failed miserably at USDA. 
Further evidence of transgressions is the FBI raid on the Office of the Special Counsel for failing to investigate 
and properly process whistleblower complaints. Many of these complaints had been filed by USDA employees. 
Tlie USDA Office of Inspector Genera! that hears claims of fraud, waste and abuse violated the trust of many 
USDA employees that came to them for help during this adminis tration. This is how bad it is at USDA, Mr. 
Chairman. And when we inform officials about these continued widespread abuses of top leadership, they deny 
any wrongdoing and call us liars. 

The Office of Civil Rights had an enormous staff... approximately 120 employees, and the money to solve the 
problems at USDA - and they failed us miserably. Those that suffered were employees and minority farmers 
who came seeking justice and timely processing of their complaints. The present Assistant Secretary for Civil 
Rights spends her time and money on diversity and outreach, instead of trying to improve USDA's civil rights 
practices and case processing. 

The Office of Outreach has done little to nothing to reduce farmer complaints and spends most of its time 
conducting dog and pony shows at the tax payer's expense, while USDA employees and minority farmers suffer 
from the effects of a failed civil rights process. These effects are manifested as despair, fatigue, frustration, 
depression, hopelessness and anger. The OITice of Outreach has failed to achieve its mission to provide tangible 
assistance to minority farmers. Even the Marriott Assistance Program which was an outreach initiative designed 
to help Black farmers sell their product to MaiTiott Hotels and others withdrew its participation in the program 
because of the failure of the Office of Outreach. There was so much that could have been gained for Black 
farmers and other minority fanners, which was lost because of USDA's refusal to do the right thing. 

USDA has a legacy of this kind of neglect of civil rights for employees and minority farmers. Our reports and 
meetings with top USDA officials have contributed little to turning the ship of racist disc riminat ory behavior 
around. However, I see this hearing and this Committee as the 800 pound gorilla in the room - that can and 
must bring some .sanity and Justice to the failed USDA Office of Civil Rights, and the civil rights process. 

There have been enough wasted tax dollars sent down the sink hole of failures • enough is enough! 

What I have said to you is jn no way the totality of the problems and abuses going on in and around the USDA 
Office of Civil Rights admini stration and processing of complaints. I will say that the USDA Coalition of 
Minority Employees never acquiesced to threats, insults, and implications that we may be a terrorist 
organization because we were continuing to uncover their civil and human rights abuses and more. I also know 
that this Committee is not intimidated by top USDA officials armed with misinformation. When they tell you 
there is little to no dis criminatio n, racism, sexism, assaults on women, 



59 


and abuse of employee and farmer rights. They will tell you, as they told their senior managers and executives 
that the majority of persons filing EEO complaints are nothing more than poor performers. 

They will tell you that the farmers are nothing more than abusere of the civil rights process. While the 
American taxpayers, you and I, pay the billions of dollars needed to settle these cases. Pigford v. Glickman is 
only one example of USDA's publicly known legacy of abuse and neglect. 

Mr. Chairman and members of this Committee, I offer you a solution to this legacy of abuse at USDA that 
continues to cycle around the USDA Office of Civil Rights. Put the USDA Office of Civil Rights in 
"Receivership," and allow it to be managed by a serious, highly talented, experienced and dedicated group, 
committed to carrying out the spirit and letter of the civil rights laws for which it has been entrusted. The 
findings of the General Accountability Office Report, Hearings held by the No Fear Tribunal being held today 
and in the past, the host of complaints heard and received by Congressionals, the concerns addressed by USDA 
employees with the Equal Employment Opportunity Commission, Merit System Protection Board. Office of 
Special Counsel, Office of Inspector General, Office of General Counsel and USDA Office of Human Resources 
confirm this. The concerns addressed by farmers and their advocates and the thousands of cases against the 
agency show just how bad the conditions at the USDA Office ofCivil Rights and is showing no signs of 
improvement. 

One formula to bring some government accountability over (he USDA civil rights process is to establish a 
USDA Civil Rights Oversight Board. The Board would report to the Secretary of Agriculture. The membership 
of the Board would consist of: 

One person appointed by the USDA Office of the Secretary 

One person appointed by the Senate Agriculture Committee 

One person appointed by the House Agriculture Committee 

One person appointed by the Farmer Community ('I'itle VI) 

One person appointed to represent the USDA employees (Title Vlf) 

This formula would better assure that the ovei-sight of USDA Civil Rights that has failed under USDA itself, the 
Equal Employment Opportunity Commission, Merit System Protection Board, Office of Special Counsel, Office 
of Inspector General, USDA Office of Human Resources, and the Congress will be greatly improved, i would 
gladly assist in bringing greater understanding of this "Receivership" concept at your request. 

In closing I would like to say with regards to government accountability, USDA and others have failed 
USDA employees and the farmers of this country. However, this hearing should be a new beginning for all 
those concerned with USDA civil rights. ! 



60 


want to thank, so many that made it possible. I also want to thank the General Accountability Office for their 
report and we hope that it will expose the real truth regarding the poor conditions of USDA civil rights. We 
believe this report will confirm most of what the USDA Coalition of Minority Employees and its delegation have 
been saying to the Congress and USDA for years. USDA listened, but did little. This Congress and this 
committee here, and your Congressionals have given new life and confidence that America does care about the 
USDA employees and minority farmers that are in this room today, and those that are awaiting the results of this 
important No Fear Hearing that is still going on in this building as we speak. 



61 


Mr. Towns. Thank you. Thank you for your testimony. 

Lesa Donnelly. 

STATEMENT OF LESA DONNELLY 

Ms. Donnelly. Mr. Chairman, thank you for allowing me to 
speak here today. 

I would like to place on the record six declarations from Forest 
Service employees from across the Nation. 

Mr. Towns. Without objection. 

Ms. Donnelly. Thank you. 

I worked for the USDA Forest Service for almost 25 years, from 
1978 to 2002. In 1995, I filed a class action lawsuit on behalf of 
6,000 Forest Service women in California, known as the Donnelly 
V. Glickman. It resulted in a Consent Decree to deal with issues 
of sexual harassment, hostile work environment, and reprisal. 
Prior to that lawsuit, there was a lawsuit called Bernard! that 
went from approximately 1971 through 1994. Region Five Califor- 
nia had been, through 2006, in Federal court monitored oversight 
on gender discrimination issues for 30 years through 2006. Still, 
women are sexually assaulted, threatened, and harassed to this 
day. 

As a lay advocate, I currently represent employees of California 
across the Nation. They are victims of sexual assault, physical as- 
sault, sexual harassment, gender, racial, and disability discrimina- 
tion, and a lot of reprisal. 

For years and years, I have tried to work cooperatively with the 
Forest Service and USDA leadership, from the Secretary’s office to 
the Chiefs office to the regional offices, and it has been to no avail. 
They refuse to work with us. We could be a long way ahead in pre- 
venting and eliminating these abuses of employees if they would 
just come to the table and try to work with us, but they won’t. 

They not only refuse to communicate; they ignore acts against 
employees that are so egregious that you would think they would 
have no conscience at all or humanity. 

As an example, I would like to bring forward the situation in 
2005 in which I had a meeting with Under Secretary Mark Ray 
and tried to discuss the rape of a young female fire fighter in 
southern California, and Mr. Ray advised me that he and the 
USDA were not concerned about the incident, that it was merely 
a police matter. The woman had been complaining of sexual har- 
assment for months prior to that and it ended in a rape. 

In 2005 another female fire fighter was sexually assaulted in 
Sacramento. When we spoke to Assistant Secretary for Civil 
Rights, Vernon Parker, he callously replied that it was not rape, 
because there was no penis penetration. The woman had been pen- 
etrated by the man’s hand. He said it in a very callous manner. 
When the Monitor tried to speak with him more about it, he just 
dismissed it. He would not discuss it at all. 

The callous and insensitive ways that USDA and Forest Service 
management have dealt with these issues show a lack of concern, 
a total inhumanity toward these victimized employees. They high- 
light the agency’s failure to address violations of law, policy, and 
procedure. 



62 


Today, we have here with us Christine Levitop, who flew out 
from California. She was sexually assaulted in 2004 and, as of this 
day in 2008, she is still being retaliated against for reporting that. 
The regional offices and Washington offices will not take any action 
to stop this ongoing harassment and reprisal. There are numerous 
cases that I could speak about, but we don’t have time for that 
here, numerous cases. 

Workplace violence is a very serious issue in USDA Forest Serv- 
ice and very problematic in Region Five California. They don’t fol- 
low regulations and policies. 

I would like to bring to your attention a recent situation where 
a White male supervisor threatened an African American female 
subordinate with a gun. Management did not follow procedures 
properly. The two women still fear for their lives, and there still 
could be dire consequences from the agency not dealing with it. 

I would like to state that something has to be done. I think we 
need congressional oversight. I would like to emphasize that we 
need a panel, an independent advisory panel to deal with this, to 
deal with the reprisal which is rampant. And, I agree with Mr. 
Lucas, I would like to emphasize that USDA needs to be placed 
into receivership until something can be done for them to start 
dealing with issues of harassment, discrimination, workplace vio- 
lence, and sexual assault have no place in the Government. Some- 
one is going to be killed, sir, unless something is done about this. 

Thank you. 

[The prepared statement of Ms. Donnelly follows:] 



63 


Testimony for Congressional Hearing 

My name is Lesa L. Donnelly. I worked for the USDA, Forest 
Service, Region 5, (California) in various administrative positions from 1978 
through 2002. In 1995, 1 filed a class action lawsuit on behalf of six 
thousand women in California on the basis of sexual harassment, hostile 
work environment and reprisal. In 1997, the lawsuit was certified in District 
Court as Donnelly v. Glickman and resulted in a court ordered Consent 
Decree that lasted until 2006. 1 am vice president of the USDA Coalition of 
Minority Employees. As a Lay Advocate, I have represented federal 
employees in the Equal Employment Opportunity Commission (EEOC) and 
Merit System Protection Board (MSPB) administrative processes for 
fourteen years. 

I currently represent USDA, Forest Service employees in Region 2 
(Colorado), Region 3 (Arizona), Region 4 (Utah), Region 5 (California), 
Region 6 (Oregon), and Region 1 0 (Alaska). 

The employees I represent are victims of sexual assault, physical 
assault, sexual harassment, gender discrimination, racial discrimination, 
disability discrimination and reprisal. For years I’ve tried to cooperatively 
work with Forest Service leadership at the Regional and Washington office 
levels to address these issues and work toward creating and maintaining an 


1 



64 


effective program that would prevent and eliminate civil rights violations. 
The step we cannot get past is that USDA and Forest Service leadership will 
not acknowledge there is a problem. They not only refuse to communicate, 
they ignore acts against employees that are so egregious one would think the 
leadership has no conscience or humanity. 

In 2005, 1 met with Under Secretary Mark Rey to discuss the rape of 
a female firefighter on a Southern California forest. Prior to the rape, the 
young woman had complained of sexual harassment from males on her fire 
crew. Forest Service management did not respond to her complaint. She 
was subsequently raped by a male crew member. Mr. Rey advised me that 
he, and the USDA, Forest Service were not concerned with the incident 
because it was solely a police matter. 

In 2005, another female firefighter was sexually assaulted while on 
training in Sacramento, CA. When the Donnelly v. Glickman Settlement 
Monitor spoke to Assistant Secretary for Civil Rights, Vernon Parker about 
the incident, Mr. Parker’s immediate response to her was, “It was not rape 
because there was no penis penetration.” The employee had assaulted her 
with his hand. When the Monitor told Mr. Parker it was sexual assault and 
should have been addressed by management as such, he changed the subject 
and would not discuss it. These callous and insensitive attitudes are 


2 



65 


representative of USDA top management’s lack of concern and inhumanity 
toward victimized employees. These poorly handled situations highlight the 
agency’s failure to address violations of law, regulations and policy. 

There have been many other sexual harassment incidents, and sexual 
assaults in Region 5. For example, in 2005 and 2006, Kristine Levitoff, a 
Forest Service Emergency Control Center Manager with 17 years of service, 
and who is in charge of dispatching resources for large, complex fires, 
natural disasters, and other emergencies, was sexually assaulted, stalked, 
continually touched, and asked for sex by the Plumas National Forest Fire 
Management Manager. She reported it immediately to her supervisor, but 
the agency took no action. She filed a formal complaint and the Fire 
Management Officer was forced into retirement. Six months later, in 2007, 
the Plumas National Forest management tried to rehire the man. Ms. 
Levitoff filed a complaint on that action and in 2008 has been retaliated 
against in the form of supervisory assault, verbal abuse, public humiliation 
and a 30-day suspension. The Regional Office and Washington Office will 
not take action to stop the ongoing harassment and reprisal. Unfortunately, 
there are too numerous other cases of women being treated similarly and 
there is not enough time to discuss these situations. Please believe me, the 
problem is rampant in Region 5 and throughout the Forest Service. 


3 



66 


Workplace violence is a serious problem in USDA. U is particularly 
problematic in Region 5 of the Forest Service. I have observed that Region 
5 management often does not follow regulations and policies which require 
immediate investigation and employee safety measures. In February, 2008, 
a white male supervisor on the Plumas National Forest stated that he wanted 
to bring in his gun and shoot the employees he hates. Fie stated that he hated 
his African American female subordinate more than anyone. The woman 
who reported it, and the threatened African American woman were fearful 
for their lives. The District Ranger did not take the situation seriously and 
told the women that he was a decent man and that they had nothing to fear. 
For a period of time they the supervisor continued to enter the office. Proper 
safety precautions were never followed. The two women have been 
retaliated against for reporting the supervisor. There has been no conclusion 
to this incident. This is just one example of workplace violence against 
women that has been mishandled and could still bare dire consequences. 

I have observed a pattern and practice by agency managers to 
retaliate against employees who raise claims of harassment, discrimination 
and workplace violence. The retaliation takes the form of shunning and 
isolation; threats and intimidation; false misconduct charges and 
investigations; disciplinary actions; negative performance; denial of training; 


4 



67 


removal of job duties; and termination. There is no, I repeat NO avenue for 
employees to go to get the retaliation stopped. 

The Secretary of Agriculture issued Alternative Dispute Resolution 
directives that require the agencies and mission areas to mediate, and in 
good faith, attempt to resolve employee complaints prior to hearing and 
litigation. If followed, these directives would save the tax payer millions of 
dollars yearly. A large number of complainants are denied mediation. A 
larger number of complaints that are mediated do not settle due to Resolving 
Official bias, ignorance of the process, incompetence, resentment toward 
complainants, retaliation, contract attorneys’ desire to prolong litigation, and 
a widespread belief that complainants are troublemakers that should not be 
rewarded. 

Agency managers’ failures to address employee claims results in 
formal complaints. Employees are forced into unwieldy and dysfunctional 
EEO and MSPB systems that do not address or correct the underlying 
problems. The federal government spends billions of dollars fighting 
employees instead of resolving the issues. Agency attorneys prolong the 
EEO process causing unnecessary costs to employees and the government. 
Contract attorneys refuse to settle complaints and purposely prolong the 
EEO process for their own financial gain. 


5 



68 


There is NO oversight of agency managers. They consistently fail to 
follow civil rights laws and waste billions of taxpayer dollars in the process. 

Coalition of Minority Employees president Lawrence Lucas has 
provided the most reasonable and potentially successful recommendations to 
address the USDA civil rights problems. I will emphasize that an 
independent advisory board should be created. A panel for addressing 
claims of retaliation needs to be convened. The LfSDA should be placed 
into receivership until there is evidence that employees’ civil rights will be 
recognized and the laws will be followed. 


Lesa L. Donnelly 
USDA Coalition of 
Minority Employees 


6 



69 


Mr. Towns. Let me thank all of you for your testimony, of 
course. 

At this time, I would just like to raise a few questions. You men- 
tioned this retaliation. I am concerned about that, because it means 
that workers can’t come forward to share, because they are afraid 
that they might be retaliated against. That, to me, is very, very 
disturbing. I think that it doesn’t strengthen the agency when you 
behave and operate in that fashion. If a person comes forward with 
information, or even a strong suggestion, it appears that something 
negative might happen to them. 

Is this a recent thing, or has this been going on all along, Mr. 

IjU.C9.S*^ 

Mr. Lucas. What I have to offer is that the USDA Office of Civil 
Rights is not a leader in this regard. It has been going on through- 
out the Department for a long time. They have gotten to a point 
where if an employee speaks up and wants to improve the system 
or tell about the problems of the system, they are the people who 
are fired; they are the people who are put on discharge. We have 
had almost the loss of the life of an employee because of the op- 
pression, and the Office of Civil Rights, itself, has over 30 or 40 
complaints filed against its former Director of Civil Rights. So, this 
is a problem that is endemic, this reprisal and intimidation to con- 
trol the kind of information that can come to this committee and 
to the American public. They are just as much a part of the prob- 
lem, and they are not part of the solution in this regard. 

Mr. Towns. Thank you, Mr. Lucas. 

Let me ask you, Mr. Boyd, has the Department made any efforts 
to increase minority membership in county office committees? Have 
they made any attempt? It seems to me you need to have diversity 
there, as well. 

Mr. Boyd. I would say no. I think Mr. Givens touched on it ear- 
lier in his testimony about the lack of minorities that participate 
on the county committee. That is such an important factor with 
farm ownership loans, farm operating loans, farm equipment loans, 
because if you don’t have representation in your area, the good old 
boys continue to receive these farm ownership loans and operating 
loans every year. What happens is, the county supervisor or county 
director there in those particular counties say, “Mr. Boyd, we have 
already used our allotted moneys for this year, so you guys are wel- 
come to come back next year.” If you don’t have a person on that 
county committee fighting for minority farmers in that area, you 
are not going to see an increase in farm loans throughout the Farm 
Service Agency. 

Mr. Towns. Right. 

Now, Mr. Givens, you mentioned the Bureau of Indian Affairs. I 
wasn’t clear of the role the Bureau of Indian Affairs played in this. 

Mr. Givens. Mr. Chairman, there is a uniqueness. We are the 
only race of people that your blood quantum dictates services. The 
blood quantum dictates services. Because I am more than one-quar- 
ter blood Cherokee Choctaw Indian, I still have to get permission 
from the BIA to do business with USDA. We still have USDA em- 
ployees who don’t understand CFRs as it relates to Native Ameri- 
cans. 



70 


A good example, I have children and relatives that would like to 
participate in the county committee election process, but until 
USDA employees do what we call reconstitution, put these tracts 
of Indian land in the FSA computer, we don’t get to vote in all- 
White county committee elections. We filed complaints since 1994 
to the present, yet the Office of Civil Rights has thrown out these 
complaints, even after compliance reviews were done. That is a se- 
rious problem. 

I would love for some of our tribal members to sit on the county 
committee, but that is an issue that FSA doesn’t want to address. 
They say, “Well, we can’t identify Indian land.” Well, sir, I brought 
a document here that says my grandfather was a full-blood Choc- 
taw Indian in Oklahoma in 1904. Until this day, I still can’t get 
all this Indian land in the FSA computer. 

I have met with the Secretary, I have met with the Under Sec- 
retary Floyd Gaber February 7th, but yet, the Office of Civil Rights 
has dismissed all our complaints over county committee election 
processes. 

Ms. Gray, who was the Civil Rights Director, traveled to Joplin, 
Missouri, Oklahoma. We have Cheree Henry who at the time was 
the Outreach Director. She tried to address these county committee 
issues. She was treated rudely, disrespectfully, and had some racial 
problems with the same office that I have to deal with every day. 

So, for you all to hear that Native Americans don’t have full par- 
ticipation in USDA, we have the documentation to show that. None 
of my kids have ever been able to participate in the county commit- 
tee election. Everybody in the county office is hired by the all- 
White county committee — uncles, nieces, and nephews. The credit 
manager’s brother is chairman of the county committee. That is not 
only unethical, that is criminal when they both sign off on each 
other’s signature. We filed a complaint, but the Office of Civil 
Rights hasn’t done anything. 

We had a school superintendent that had to come up here last 
year and meet with Thomas Hoffler, file the program complaint, 
the Civil Rights complaint over county committee elections, and 
this is the first time we have ever had county committee polling 
places in Indian country. That is when gas was $2. Now it is $4. 
So we don’t have access to the county committee election process. 
That is the local vocal point of input that we should have. 

Mr. Towns. Right. 

Mr. Givens. I wish you all would do something about that. 

Mr. Boyd. Mr. Chairman, I would just like to add, as well, that 
the minority advisors really don’t have any voting rights to these 
committees. In some areas of the country, they have what is called 
minority advisor to their committee, but they really don’t have any 
voting rights. What they usually do is offer a loan to that person, 
and that person usually does not go back out into the community 
to try to help other Black farmers and other minority farmers. So, 
we need to look at some of the policies so that we can get more rep- 
resentation for those voting members and get more participation 
from Blacks and Hispanics. 

The minority advisor is usually appointed, so it is not going to 
be a person like John Boyd or Phil Givens or someone very vocal 
in the community that is going to bring back and spread the word 



71 


to other minority farmers in the community. So, we need to look 
at our policy and make some recommendations on how we can get 
more minorities involved in the county committee. 

Mr. Towns. Let me yield to a person that probably has more 
farm land in his District than anybody else in the U.S. Congress, 
from the State of North Carolina, Congressman Butterfield, 5 min- 
utes. 

Mr. Butterfield. Thank you very much, Mr. Chairman, and 
thank you for allowing me to participate in this proceeding today. 
I am not on this subcommittee. That is my misfortune, but I do not 
serve on this committee. I am on the Energy and Commerce Com- 
mittee, and therefore we do not have direct jurisdiction over these 
matters. But when the chairman told me that we would be delving 
into this subject today, I wanted to be a part of it, and he gra- 
ciously allowed me this opportunity. So, thank you very much, Mr. 
Towns. 

It is true that I represent the First Congressional District of 
North Carolina. My District is in the northeastern part of the State 
of North Carolina. It used to be called years ago the Black Belt, 
and so, as you can imagine, we had many, many farms in my Dis- 
trict that were owned by African American citizens many years 
ago. But, over the years we have suffered a tremendous loss in 
Black farmland in my Congressional District. My District has been 
particularly hard-hit in terms of the loss of Black farmland and 
Black farmers, and so I have an interest in this subject. 

Twenty-five years ago, when I was president of the Black Law- 
yers Association in my State, we started the land loss prevention 
project. Rosslyn Gray and others will remember when we started 
that program. That program has been very instrumental in trying 
to address this issue. 

But, the Black farmers represent an important community. That 
is the message that we have to convey every chance we get, Mr. 
Chairman. It is an important community. It is part of the economy. 

At the turn of the 20th century there were nearly 1 million 
Black-owned farms in the United States. Today, that number is 
down to about 18,000. That is a tragedy. That is an indictment, 
and not only on the Congress but on our country as a whole, and 
we must do better. Black-owned farms once represented 14 percent 
of all farms. They now make up just 1 percent of all farms. 

As the backbone of rural America, farmers play a critical role as 
champions of micro-enterprise, land ownership, family values, and 
rural culture. The plight of the small farmer, particularly the Black 
farmer, has gone largely unaddressed. The Congress shares in that 
responsibility. The USDA certainly shares in that responsibility. 
We are going to hear from them in just a few minutes. 

Years of discrimination against Black farmers, as well as other 
socially disadvantaged farmers, by the USDA are directly respon- 
sible for the loss of land and the loss of a way of life for many 
Black farmers in America. Recognition of deficiencies in the equi- 
table treatment of farmers have been slow coming, to say the least, 
at the USDA. The creation of the Office of Civil Rights in 1971 has 
done little to improve or correct the deeply rooted elements of dis- 
crimination in the Department. 



72 


Its frequent reorganizations and reincarnations have failed to ad- 
dress the central issues of Black farmers and other socially dis- 
advantaged farmers. This much was documented in the 2003 report 
by the U.S. Commission on Civil Rights, which found that the 
changes in the Department had produced very little progress in 
their Civil Rights enforcement program. The appointment of the 
Civil Rights Action Team in 1996 shed some light on the problem, 
but lacked the authority to make any substantive changes. The cre- 
ation of the Assistant Secretary of Civil Rights by Congress in 2002 
was the most significant step to this date to rectify outstanding 
Civil Rights issues within the Department. 

I am most interested in the testimony of Secretary , McKay as to 
the latest action within the Department to deal with that issue. 
But of highest concern to me this day are two recent actions by in- 
dividuals within the Department, which clearly illustrate clearly 
the kind of lingering discrimination that plagues the Department 
from Washington, DC, all the way down to the local offices 
throughout the country. 

The first was the unauthorized use of Government e-mail last 
summer, among Farm Service Agency personnel to lobby against 
new Pigford legislation in this year’s farm bill. I might say, Mr. 
Chairman, as you well know, we passed just moments ago the farm 
bill. That is why I came to the floor late — we just passed the farm 
bill. It has in it $100 million for Pigford claimants. 

[Applause.] 

Mr. Butterfield. It has been a long time coming, and I am not 
the only one who worked on that legislation, and credit goes to 
many. Congressman Benny Thompson, Congressman David Scott, 
Congressman Artur Davis, Congressman Bobby Scott — all of us 
had a hand in trying to make this happen. But it is in the legisla- 
tion. We passed it a few moments ago. It has the concurrence of 
the Senate and should be headed to the President’s desk, and hope- 
fully he will sign it. If he does not, I think we have the votes to 
override. We do now have the votes to override that, so that is good 
news. 

[Applause.] 

Mr. Butterfield. I am personally proud of these historic steps 
that we have taken in this year’s farm bill to help deserving Black 
farmers, many of whom live in my District, including Mr. Pigford, 
who calls me often. Many of whom you know, Pigford has led the 
way, he is a constituent of mine, along with Gary Grant and other 
Black farmers in the District who have suffered so much. So I am 
proud of the historic steps that we have taken in this year’s farm 
bill to give these farmers a true opportunity for redress. 

Let me get back to these e-mails, and then I will conclude, Mr. 
Chairman. 

These e-mails, which were circulated on federally owned comput- 
ers, illustrate a gross misunderstanding of the purpose of the 
Pigford decision, which was to award damages for the lost land and 
income of thousands of Black farmers whose livelihood was ripped 
from them, by the USDA’s discriminatory practices. The pervasive- 
ness of this incident draws startling conclusions, as the depths that 
long-term racial discrimination still exists within the Department, 
and we must recognize that and we must do something about it. 



73 


I am further concerned by a February incident, between the GAO 
auditors and the Office of Civil Rights within the Department, as 
well. 

So I join Senator Obama and John Conyers and Benny Thomp- 
son and Bobby Scott in Artur Davis in a letter condemning the in- 
cident and the denial of the GAO auditors from carrying out their 
investigation of the Office of Civil Rights. The USDA did contact 
my office in response to our letter, and I certainly appreciate their 
prompt response; however, Mr. Chairman, I would appreciate more 
than that if they allow oversight wing of the Congress to have full 
access in their investigation of the Office of Civil Rights. Denying 
us our right to oversee the progress of this historically ineffective 
office only serves to deepen our doubt about the USDA’s ability to 
improve its track record. 

With that, Mr. Chairman, I think I have run out of time. I don’t 
see your clock. My committee room has a very prominent clock. 

Mr. Towns. It is there. It is on red. 

Mr. Butterfield. I have been looking for it. I need to look down 
instead of looking up. But thank you very much, Mr. Chairman. I 
will include the remainder of my comments in the record. 

I yield back. 

[The prepared statement of Hon. G.K. Butterfield follows:] 



74 


G. K. BUTTERFIEy) 

1st DisTRici . NoK fti Carolina 


CHIEF DEPUTY WHIP 
OF THE OEMOCHATtC CAUCUS 


413 Cannon House Office Suiloinc 
Washington. DC 2CBI5-3301 
12021 22&-3101 
Fax; J2021 225-3354 


Congress ot tlje Uniteti Sitateg 

of JHepreoentatibeO 

UMaslimston, JOC 


www.house.gov^utlerfie!d 


Opening Statement 

Committee on Oversight and Government Reform 
Subcommittee on Government Management, Organization, and 
Procurement Hearing: 

“Management of Civil Rights at the 
United Stated Department of Agriculture” 

Rep. G. K. Butterfield 
May 14, 2008 


Black farmers represent an important, yet shrinking community. At the turn of the 
20“' Centuiy, there were nearly one million black-owned farms, though today that 
number has dropped to about 1 8,000. Further, black-owned farms once 
represented 14% of all farms. They now make up just one percent. 


216 West Nash Streei 
Suite B 

Wilson, NC 27893 
Telephone- (252) 237-9816 
Fax: (2S2)29t-03M 


■ nSTIUCT OFFICES 

3! 1 WtSX SECOEtO Stbeet 

P.O.BOX838 
Wcu>on,NC 27890 
Teiephwk. (2521538-4123 
Fax; <2S2)S3S-«516 


41S East BouLEVAno 
Suite 100 

WiLiiAMSTON, NC 27892 
Teiephone. (252) 789-4939 
Fax 1252)792-8113 



75 


Rep. Butterfield Opening Statement 
May 14, 2008 

As the backbone of rural America, farmers play a critical role as champions of 
micro-enterprise, land ownership, family values, and rural culture. However, the 
plight of the small fatmer, particularly the African-American faimer, has gone 
largely unaddressed. Years of discrimination by the United States Department of 
Agriculture against black farmers, as well as other socially disadvantaged farmers, 
is directly responsible for the loss of land and further, the loss of a way of life for 
many black farmers in America. 

Recognition of deficiencies in their equitable treatment of farmers have been slow- 
coming at the USDA. The creation of the Office of Civil Rights in 1971 has done 
little to improve or correct the deeply-rooted elements of discrimination in the 
Department. Its frequent reorganizations and reincarnations have failed to address 
the central issues of black farmers and other socially disadvantaged farmers. 

It was documented in the 2003 report by the U.S. Commission on Civil Rights, that 
the changes in the Department have produced very little progress in their Civil 
Rights enforcement program. The appointment of the Civil Rights Action Team in 
1996 shed some light on the problem, but lacked the authority to make any 
substantive changes. The creation of the Assistant Secretaiy of Civil Rights by 
Congress in 2002 was the most significant step to date to rectify outstanding civil 


2 



76 


Rep. Butterfield Opening Statement 
May 14, 2008 

rights issues within the Department. I am most interested in the testimony of 
Assistant Secretary McKay with respect to the latest action within the Department 
to deal with this issue. 

But my greatest concern centers on two recent actions by individuals within the 
Department that clearly Illustrate the kind of lingering discrimination which 
plagues the Department from Washington, DC all the way to the local FSA offices 
throughout the countiy. 

First, was the unauthorized use of govermnent email last summer among Farm 
Service Administration personnel to lobby against new Pigford legislation that was 
included in the Farm Bill. I am personally proud of the historic steps we’ve taken 
in this year’s Farm Bill to give deserving Black Farmers a true opportunity for 
redress. These emails, which were circulated on federally owned computers, 
illustrate a gross misunderstanding of the puipose of the Pigford decision, which 
was to award damages for the lost land and income of thousands of black farmers 
whose livelihood was ripped from them by USDA’s discriminatoiy practices. The 
pervasiveness of this incident draws startling conclusions as to the depths that 
long-term racial discrimination still exists within the Department. 


3 



77 


Rep. Butterfield Opening Statement 
May 14, 2008 

I am further disturbed by a February incident between Government Accountability 
Office auditors and the Office of Civil Rights within the Department. I joined 
Senator Barack Obama, John Conyers, Bennie Thompson, Bobby Scott, and Artur 
Davis in a letter condemning the incident: the denial of GAO auditors from 
canying out their investigation of the Office of Civil Rights. The USDA contacted 
my office in response to our letter, and I certainly appreciate their prompt response. 
However, I would better appreciate them allowing the oversight wing of Congress 
to have full access in their investigation of the Office of Civil Rights. Denying us 
our right to oversee the progress of this historically ineffective office only serves to 
deepen our doubt about the USDA’s ability to improve its track record. 

The obstiuctionist attitude adopted by USDA in both of these cases brings serious 
doubts as to the commitment to civil rights held by rank-and-file USDA 
employees. Despite numerous attempts to create a commitment to righting past 
wrongs, elements of the Department seem uncommitted to this goal as we sit here 


in 2008. 



78 


Mr. Towns. Thank you very much. I really appreciate your par- 
ticipation and also the work that you have done on this. You called 
some names that I have heen dealing with for the last 20-some 
years. Of course, when you mentioned Pigford and, of course, Boyd 
and people like that who we have had the opportunity to work with 
for many, many years on these issues, it is sad to say that we still 
have problems after all these years. Of course, I want to assure you 
that this committee is going to continue to look at these matters, 
we are going to continue to work on them, and I do believe that 
some changes need to be made. 

I notice you made some suggestions in terms of the advisory com- 
mittee. You talked about even receivership. I hear you. I think that 
there is nepotism that was talked about, and some things there. So 
the point is that these are areas that we are concerned about, and 
we feel that in order to create a level playing field, that some of 
these things just have to be corrected. 

Of course, we listen to you, Mr. Givens, in reference to not only 
the fact that USDA, but also the Bureau of Indian Affairs — you 
have a double whammy there, so we hear you and, of course, we 
will continue to look at these matters and to see what we might 
be able to do to give you some assistance. 

We are not going to go away. We are going to continue, because 
we have heard the statistics in terms of land loss. I mean, at the 
rate we are going, within the next 15 to 20 years nobody Black will 
own anything, at the rate you are going. So I think that is wrong. 

I listened to you, Ms. Donnelly, in terms of the treatment in 
terms of women. That to me is very, very disturbing. I think in this 
day and age for anybody to react to something in that negative 
kind of fashion, to me just does not make sense. I want you to 
know I appreciate your comments. We appreciate your sharing 
with us. 

On this point what we would like to do is to thank you for your 
testimony. We are going to discharge you and we will take another 
20-minute break, and then we are going to come back for the sec- 
ond panel. But let me thank all of you for your testimony. Thank 
you very much. 

[Recess.] 

Mr. Towns. It is a longstanding tradition that we always swear 
our witnesses in, so please stand and raise your right hands. 

[Witnesses sworn.] 

Mr. Towns. Let it be known that all of them answered in the af- 
firmative. 

We have with us today the Honorable Margo McKay, who serves 
as the Assistant Secretary for Civil Rights at the U.S. Department 
of Agriculture. Ms. McKay sets policy and ensures compliance with 
all Civil Rights laws by USDA’s agencies. She is also responsible 
for diversity, outreach, and alternative dispute resolution programs 
of USDA. 

Phyllis Fong has served as the Inspector General for the Depart- 
ment of Agriculture since December 2002. Under her leadership, 
the USDA’s Office of Inspector General has issued numerous re- 
ports detailing weaknesses in Civil Rights management at USDA. 

Welcome. 



79 


We also have with us Lisa Shames, the Director of Natural Re- 
sources and the Environment at the U.S. Government Accountabil- 
ity Office, where she had conducted several audits that have fo- 
cused on USDA’s Civil Rights efforts. 

Let me just indicate that your entire statement will he placed in 
the record. If you just could summarize within 5 minutes, I would 
certainly appreciate it. 

Why don’t we start with you, Ms. McKay. Will you proceed? 

STATEMENTS OF MARGO MCKAY, ASSISTANT SECRETARY FOR 
CIVIL RIGHTS, U.S. DEPARTMENT OF AGRICULTURE; PHYL- 
LIS FONG, INSPECTOR GENERAL, U.S. DEPARTMENT OF AG- 
RICULTURE; AND LISA SHAMES, DIRECTOR, AGRICULTURE 
AND FOOD SAFETY, U.S. GOVERNMENT ACCOUNTABILITY 
OFFICE 


STATEMENT OF MARGO MCKAY 

Ms. McKay. Thank you, Mr. Chairman, and thank you for the 
opportunity to appear before this subcommittee today. I am happy 
to share whatever information that I can with you, because I be- 
lieve we have a good story to tell. USDA has made significant 
progress in the area of Civil Rights since the creation of this posi- 
tion in the 2002 farm bill. 

The mission of the Office of the Assistant Secretary for Civil 
Rights is to provide leadership and guidance, to ensure compliance 
with Civil Rights laws and policies, and to promote diversity, equal 
opportunity, equal access, and fair treatment for all USDA cus- 
tomers and employees. 

It is my intent that the Office of the Assistant Secretary for Civil 
Rights will be proactive, supportive, accountable, efficient, and 
timely in order to help USDA become a model employer and pro- 
vide equal access and opportunity to those who wish to participate 
in USDA programs and services. 

I would like to point out a few of our accomplishments in recent 
years. 

First, diversity in USDA: in the area of diversity, I began a con- 
certed effort to incorporate workplace diversity and inclusion as a 
core value at USDA in order to positively impact the organizational 
culture. We established a new Office of Diversity and charged them 
with building a world-class diversity and inclusion program that in- 
cludes initiatives such as cultural assessments, employee perspec- 
tive surveys, mandatory diversity awareness training, a diversity 
and inclusion forum that will foster dialog between USDA employ- 
ees and senior management, and work force planning. 

In the area of outreach, the Office of the Assistant Secretary for 
Civil Rights continues to collaborate with USDA agencies and ex- 
ternal organizations to expand and strengthen the Department’s 
outreach efforts to focus on the under-served. Through the Office 
of Outreach we have initiated policies and are implementing pro- 
grams to increase the Department’s capacity to provide access and 
technical assistance to socially disadvantaged farmers and ranch- 
ers. 

Just as one example, we have trained and worked with commu- 
nity-based organizations this past year to work with the socially 



80 


disadvantaged farmers, to help us increase their count in the 2007 
Census of Agriculture. 

With regard to diversity in county committees, first I want to 
point out that county committees play no role in the farm loan 
credit system and have not been involved in that process since 
1999. Nonetheless, they do still have an important role in farm pro- 
grams. Since the passage of the 2002 farm bill, USDA health as 
promulgated guidelines in January 2005, to ensure that the FSA 
county committees include fair representation of socially disadvan- 
taged farmers and ranchers. 

USDA uses agriculture census to target certain counties, and 
they have come up with 400 counties so far with over 10 percent 
minority population for special outreach efforts. And counties that 
don’t have a voting socially disadvantaged members must appoint 
a non-voting socially disadvantaged member. There are about 1,500 
such advisors who attend county committee meetings to lend their 
voice, and they are influential. 

Candidates can self-nominate, and through effective outreach ef- 
forts nominations of SDA — socially disadvantaged — farmers, nomi- 
nations have increased 60 percent over the last 3 years. However, 
our analysis shows that elections over the past 3 years have not 
yielded significantly more socially disadvantaged voting members. 
Currently my office is working with FSA to develop criteria for the 
Secretary to consider appointing voting socially disadvantaged 
members to some county committees in order to achieve fair rep- 
resentation. 

I might add that county committee members are held to the 
same Civil Rights policies and standards as Federal employees. 
Even though they are not Federal employees, they are bound to our 
Civil Rights policies and they can be removed for violating these 
policies. 

Our ultimate goal is to have an environment where discrimina- 
tion does not occur, where every decision is based on merit, but we 
do need to have a process in place to handle situations when dis- 
crimination does occur. So my role is to make sure that we have 
that process in place. So with regard to complaints, the problems 
of backlog case inventory and case processing times at USDA Civil 
Rights have been many years in the making. I have inherited this 
situation, and I want to tell you what I am doing to address it. 

The automated complaint system, a Civil Rights enterprise sys- 
tem which was fully implemented in mid-2007, has enabled us to 
start tackling these problems with better monitoring and reporting 
capability. We are still not able to conduct an accurate trends anal- 
ysis, because the historical data that we migrated into the system 
has come from unreliable sources. The systems that we had in the 
past which were inaccurate. 

But this system that we have now is a vast improvement, over 
anything that we have ever had in the past, and going forward 
with the input of current case data, we will be able to do trends 
analysis. 

The system is beautiful. It works beautifully if the employees put 
the data in. We do have some challenges in that area. We have a 
lot of hands that have to touch the system, including at the agency 
level and the department level. We have had training for everyone 



81 


involved. We have monthly user meetings so that any bugs in the 
system or any glitches can be worked out. And we are continuing, 
of course, to work out those bugs and to work toward further en- 
hancements of the system. But the system is new. We need to have 
an opportunity to give it a chance to work. 

In addition, we are implementing several strategies to address 
internal and external factors affecting the management of Civil 
Rights complaints. These strategies include special efforts, to elimi- 
nate the backlog. I have hired contractors and engaged in contract- 
ing services to help us eliminate the backlog. We will be finished 
with the employment backlog by the end of this fiscal year in terms 
of issuing final decisions, and we have already eliminated the pro- 
gram backlog at the final agency decision stage. 

I also have started something new, where I require weekly and 
monthly inventory and productivity reports that come to the lead- 
ership. So we need to know how things are going and how things 
are being accomplished, so that we can intervene if things are 
going awry. 

We have also revised performance and productivity standards for 
employees. We have modified complaint processing procedures. As 
I mentioned, we are utilizing contractual services and inter-agency 
agreements to assist with case processing, and we are encouraging 
increased use of alternative dispute resolution in the informal and 
formal stages. 

We are addressing timeliness and jurisdictional issues in a more 
timely way, and we are providing additional training for staff, fill- 
ing critical vacancies and implementing quality of work life and 
professional development strategies for the Office of Assistant Sec- 
retary for Civil Rights employees. 

I want to mention, while I am talking about complaints, that we 
do not condone retaliation. We have a policy against it. Anyone 
who feels as though they have been retaliated has the right to file 
another complaint, a new complaint, and have that heard. And we 
have mandatory annual training, annual Civil Rights training 
every year at USDA for all USDA employees, and the 2007 Civil 
Rights training was in the area of retaliation. 

I want to speak a little bit. My last point is about accountability. 
Every USDA employee has a Civil Rights and diversity perform- 
ance standard against which they are evaluated annually. Agency 
heads are evaluated annually based on their Civil Rights perform- 
ance. And in the past, they have been able to get a good score by 
earning extra credit. So, for example, by conducting training above 
and beyond the mandatory Civil Rights training that all USDA em- 
ployees must take, or putting on a conference. However, during my 
tenure I have changed the practice so that 

Mr. Towns. Could you sum up? 

Ms. McKay. Yes. Going forward, certain factors will be absolute 
and cannot be made up, such as completing complaint investiga- 
tions on time, so that will help us in our timeliness. 

Also, USDA has a policy that requires that we refer a case to the 
appropriate H.R. office, for possible disciplinary action whenever 
there is a finding of discrimination. This is a policy that went into 
effect in 2006. 



82 


In summary, I respectfully disagree with those who say we are 
doing nothing to improve Civil Rights at USDA. Perhaps we 
haven’t done enough to get the word out, but we have been very 
busy with all these initiatives, and I am very proud of our record 
and what we are attempting to do. 

Thank you very much for your time. 

[The prepared statement of Ms. McKay follows:] 



83 


ASSISTANT SECRETARY FOR CIVIL RIGHTS 

Statement of Honorable Margo M. McKay 
Assistant Secretary for Civil Rights 
United States Department of Agriculture 

Before the 

Subcommittee on Government Management, Organization, and Procurement 
Committee on Oversight and Government Reform 
United States House of Representatives 

Mr. Chairman and members of the Subcommittee, thank you for the opportunity to testify 
on the management of the United States Department of Agriculture’s (USDA) civil rights 
programs. 

In my observation, USDA has accomplished much in recent years, and is well on its way to 
addressing longstanding civil rights concerns. We still have barriers to overcome, but we are 
aware of them and working diligently to resolve them. 

The 2002 Farm Bill authorized the position of the Assistant Secretary for Civil Rights 
(ASCR) which was created in March 2003. As a result, the Office of the Assistant Secretary for 
Civil Rights (OASCR) was established. The mission of OASCR is to provide leadership and 
guidance to promote equal opportunity, diversity, equal access, outreach and fair treatment for all 
USDA customers, employees, and applicants. OASCR provides policy guidance, leadership, and 
coordination for USDA on all matters related to civil rights, equal opportunity, and diversity, 
including: outreach, training, compliance, conflict management, and complaint prevention and 
processing. The office is comprised of three major program areas: the Office of Adjudication 
and Compliance (OAC), (formerly the Office of Civil Rights); the Office of Outreach and 
Diversity (OOD); and, the Conflict Prevention and Resolution Center (CPRC). [See attached 
organization chart.] 



84 


Statement of Margo M. McKay, Assistant Secretary for Civil Rights Page 2 

The first Assistant Secretary for Civil Rights developed a five year strategic plan focused on 
five immediate challenges facing the Department with regard to civil rights. These challenges 
were structure, systems, procedure, operations, and accountability. There were 13 initiatives 
associated with the five challenges: 1 -consolidating functions with a civil rights focus, 2- 
realigning personnel and functions in civil rights, 3-developing and implementing a civil rights 
enterprise system, 4-improving intradepartmental relations, 5-improving customer service, 6- 
reducing complaint inventory (programs and employment), 7-increasing informal equal 
employment opportunity (EEO) complaint resolution rates, 8-establishing a public awareness 
campaign, 9-implementmg a program complaint prevention strategy, lO-initiating an EEO 
complaint prevention strategy, 1 1 -implementing the No FEAR Act requirements, 12-developiag 
accountability policy for civil rights violations, and 13-convening an annual civil rights forum. 

Much has been accomplished to date regarding the initiatives and some key successes 
include: 1 -Public Awareness Campaigns that entailed over one hundred 2-3 day trips nationwide 
to listening sessions, conferences, briefings and meetings with farmers and ranchers and 
community based organizations. These travels provided an opportunity for farmers, ranchers and 
community representatives to express their concerns about participation in and knowledge of 
USDA programs and services. 2-Civil Rights Enterprise System - a Department-wide Web- 
based system designed to provide tracking, monitoring and reporting of equal employment 
opportunity (EEO) and program civil rights complaints and alternative dispute resolutions. This 
system has enabled OASCR to provide better case management, better customer service, more 
accurate reporting, and greater accountability, transparency, timeliness and consistency in the 
processing of complaints. The employment complaints module, iComplaints, went live May 
2005; the program complaints management system went live May 2007; and the Alternative 



85 


statement of Margo M. McKay, Assistant Secretary for Civil Rights Page3 

Dispute Resolution module went live July 2007. 3-Complaint Inventory - systems were 
implemented, including an alternative dispute resolution program, with die purpose of reaching a 
manageable complaint inventory level and the ability to process future complaints in a timely 
manner. 4-Establishment of Partnerships (internal and external) - By expanding partnerships 
with community-based and other organizations, USDA has strengthened its capacity to meet the 
needs of those we serve. Internal partnerships were strengthened with USDA agencies to benefit 
USDA’s underserved customer base. External and non-traditional partnerships were established 
with organizations outside of USDA. 5- Annual Partners Meeting - USDA conducts Annual 
Partners Meetings for community and faith-based organizations representing under-served 
farmers and ranchers and fanners and ranchers themselves for the purpose of engaging in 
dialogue with senior USDA officials about critical issues that affect the minority, small farm and 
rural communities. These meetings provide a forum to discuss concerns and suggest solutions. 
We also use this forum to provide training and technical assistance. Since the first meetings in 
April and August 2004, attendance has grown from approximately 40 to 500 participants. 6- 
USDA Civil Rights Training Conference - The first USDA Civil Rights Conference was held in 
May 2006. The second USDA Civil Rights and Diversity Coirference was held in April 2008. 
Attendees included USDA executives and managers, and professionals in civil rights, human 
resources, and alternative dispute resolution. 7-Reporting Requirements - USDA is reporting 
requirements of the No FEAR Act in a timely manner. 8-Policy Development - USDA has 
issued two important regulations: 11 Accountability Regulation (January 2006), which ensures 
that appropriate actions are taken when discrimination, retaliation, civil rights violations or 
related misconduct occurs;_and 2) Alternative Dispute Resolution (’ADRJ Regulation (April 
2006), promotes the use of ADR to resolve complaints and conflicts. 



86 


statement of Margo M. McKay, Assistant Secretary for Civil Rights Page 4 

As the second confimied ASCR, I spent the first 90 days observing, meeting and listening 
to employees and internal and external stakeholders in order to get a sense of what leadership 
direction to pursue for the office. In January 2007, we established our vision and proposed plan 
of action for the OASCR. We set five priorities or areas of focus for enhancing civil rights at 
USDA through January of 2009 and beyond. These five priorities include: 1-diversity, 2- 
outreach, 3 -conflict prevention and resolution, 4-improving the quality, efficiency and timeliness 
of complaint processing, and 5-communications and public awareness. 

Diversity - One of the top priorities is to incorporate workplace diversity and inclusion as a core 
value in USDA’s organizational culture. So far, OASCR has achieved the following key 
accomplishments: 1) issued a workplace diversity and inclusion statement to all USDA 
employees; 2) established a new Office of Diversity; hired a Departmental Diversity Program 
Manager; and transferred the Special Emphasis programs fi'om the Office of Adjudication and 
Compliance to the new Office of Diversity; 3) conducted diversity briefings for the Secretary, 
Sub-cabinet, Management Council, Agency Civil Rights Directors, employee organizations, and 
employees; 4) conducted mandatory civil rights training for all USDA employees in FY 2007 on 
two topics: “Retaliation” and “Reasonable Accommodation of Disabilities;” 5) developed 
mandatory diversity awareness training for all USDA employees in FY 2008; 6) developed 
diversity questions to be included in the Department-wide cultural assessment (employee survey) 
sponsored by the Office of Human Capital Management; 7) worked with the Office of Human 
Capital Management to establish Civil Rights and Diversity Performance Standards for USDA 
employees at all levels; 8) conducted regular meetings with USDA-recognized employee 
organizations to discuss diversity-related issues; 9) held monthly diversity lunch series for 
USDA employees with internal and external speakers; 10) held the 2”“’ Civil Rights and Diversity 



87 


Statement of Margo M. McKay, Assistant Secretary for Civil Rights -• Page 5 

Training Conference; 1 1) presented the first USDA Diversity Award to an agency and an 
employee organization for demonstrated commitment in promoting diversity and inclusion; 12) 
co-sponsored a Disability Awareness Conference for Managers and Supervisors; and, continued 
Special Emphasis events and Cultural Heritage observances; 13) developed and submitted for 
clearance a draft long-term USDA Diversity Strategic Plan; and, 14) established the Diversity 
and Inclusion Forum, a regular meeting of senior USDA ofScials and employee representatives 
to communicate concerns and suggestions involving issues of diversity. 

Outreach - OASCR’s Office of Outreach and Diversity has a broad mandate to expand the 
Department’s outreach efforts to ensure equal access and opportunity to participate in USDA 
programs and services, with special focus on the underserved. Key accomplishments so far are: 

1) developed the USD A- wide Outreach Strategic Plan presently in Departmental clearance; 2) 
developed the Departmental Regulation on Outreach presently in Departmental clearance; 3) 
conducted the 4th Annual Partners Meeting in August 2007, with a record 450+ persons in 
attendance, where representatives from community-based organizations (CBOs) and USDA 
agencies discussed issues affecting small, minority and limited resource farmers and ranchers. Of 
note was the presentation of the first annual Partners Awards for excellence in outreach efforts to 
a community-based organization (CBO) and a USDA agency; 4) partnered with the National 
Agricultural Statistics Service and CBOs to reach, educate and obtain a more accurate coimt of 
socially disadvantaged farmers and ranchers in the 2007 Census of Agriculture; 5) revived the 
Center for Minority Farmers and provided technical assistance to socially disadvantaged farmers 
and ranchers, e.g., partnered with Rural Development and the Agricultural Marketing Service to 
train farmers and ranchers in how to obtain USDA certifications in Good Handling Practices and 
Good Agricultural Practices so that they can better compete in mainstream agribusiness; 6) 



88 


statement of Margo M. McKay, Assistant Secretary for Civil Rights Page 6 

updated MOUs with the 1 890 and 1 994 Land Grant Institutions to provide scholarships, 
internships, training and offers of permanent employment to students of agriculture from diverse 
backgrounds in order to provide a pipeline to future USDA leaders; and, 7) continue to manage 
MOUs with the Thurgood Marshall Scholarship Fund, League of United Latin American 
Council, the Department of Health and Human Services (re; new immigrants) and other partners. 
Conflict Prevention and Resolution - OASCR convened a USDA-wide ADR Training 
Conference in September 2007. The conference was attended by over 200 ADR practitioners, 
managers, and employees. 

Case Processing - Another one of my top priorities is to achieve quality, efficient and timely 
complaint processing. In addition to completing all three modules (Employment and Program 
Complaints and ADR Resolutions) of the Civil Rights Enterprise System, our Web-based 
automated tracking and reporting tool, we are also taking steps to improve internal case 
processing standards and procedures. However, one of the barriers to achieving success is an 
extensive backlog in both program and employment complaints. To address this, we developed a 
backlog elimination plan: 1) We set a goal to eliminate the backlog of Final Agency Decisions 
(FADs) in program complaints by December 31, 2007, and we met the goal; 2) We also set a 
goal to eliminate the backlog of Final Agency Decisions in employment complaints. OASCR 
entered into an Inter-Agency Agreement with the United States Postal Service to assist in writing 
employment FADs. Our goal is to eliminate this backlog by the end of FY 2008; 3) I personally 
conduct weekly case reviews of FADs before they are issued in order to ensure quality decisions; 
4) OAC is required to produce weekly and monthly complaint inventory and productivity 
reports; 5) OASCR plans to conduct an organizational assessment of OAC to look at internal 
processes, performance and productivity standards, workflow, workload, morale and staffing in 



89 


Statement of Margo M. McKay, Assistant Secretary for Civil Rights Page 7 

order to determine how we can work more efficiently and timely; 6) we have also made critical 
improvements in staffing critical positions and btisiness re-engineering that positively affect our 
human capital and work flow; 7) We hold regular “all hands” meetings with OASCR employees 
to promote communication and transparency; 8) in order to address morale and promote 
productivity, we established a telework policy and program for eligible OASCR employees and 
established a Work/Life Coordinator position to facilitate this and other work/life programs; 9) 
We also convened a Professional Development Task Force to develop and coordinate 
professional development programs for OASCR employees. We are working with other 
agencies and the Office of Human Capital Management to expand this program across the 
Department; 10) we conducted training for all OASCR employees on communication, conflict 
management, and generational differences. 

I believe that, since the creation of the OASCR, and during my tenure, we have made 
significant progress towards ensuring that agencies adhere to civil rights laws and policies; hold 
managers accountable; provide better customer service to employees and customers; bring 
closure to overdue complaints; and process all complaints in accordance with established time 
standards. Our public image is slowly catching up to the reality of USDA’s new civil rights 
record. That is why I am so appreciative of the Committee’s invitation to speak today. Hearings 
such as this provide us with an invaluable forum to let the world know about all that we have 
done, and all that we continue to do to advance civil rights for USDA employees and program 
participants. 

Again, thank you for the opportunity to share an overview of USDA’s management of its 


civil rights programs. 



United States Department of Agriculture 


9 



lanitary 

















92 


Mr. Towns. Thank you. 

The Honorable Phyllis Fong. 

STATEMENT OF PHYLLIS FONG 

Ms. Fong. Thank you, Mr. Chairman, for inviting us to testify 
today. I appreciate the chance to talk about the work that our of- 
fice has done in overseeing USDA’s Civil Rights program. 

The issue of Civil Rights and the processing of Civil Rights com- 
plaints has been a significant issue to us for a long time. We have 
issued 11 audits, on a variety of issues in the program over a 10- 
year period, and that work is summarized in my statement. 

Today, I want to focus on some of the recurring themes that we 
have seen in our reports, and then discuss our most recent report. 

We looked at our reports over this last period of time and we 
have found a number of themes that we believe are relevant to you 
today because we believe they identify fundamental issues in the 
program that need to be addressed if USDA is to move forward. 
These themes include the continuous internal reorganization with- 
in the Civil Rights Office that has occurred. There is, turnover at 
both management and staff levels that has occurred. There is, in 
our view, a lack of effective leadership and accountability to correct 
reported problems that have been identified. And there is a lack of 
adequate management controls to track progress in achieving re- 
sults. 

Many of these themes came out in our most recent report, which 
we issued about a year ago, on how USDA was addressing EEO 
complaints and employee accountability. We had several key find- 
ings that I want to highlight. 

First, we found that Civil Rights had made improvements in the 
amount of time that it takes to process complaints, but we found 
that additional efforts are needed to close complaints in an accept- 
able timeframe. For comparison’s sake, in 1997 it took the Depart- 
ment on average 3 years to process a complaint; by 2007 this had 
improved significantly to just under IV 2 years, but this still falls 
short of the EEOC’s timeframe. They would like Federal agencies 
to process cases within 270 days, so USDA has a ways to go on 
that. 

In a second area, we found that Civil Rights had made progress 
in implementing CRES, the automated system that Assistant Sec- 
retary McKay referred to. This system is a good system, and when 
it is fully implemented we believe it will be helpful to the Depart- 
ment in tracking complaints and providing data for reports. We 
found, however, that further work is needed to ensure the accuracy 
of the data that is being entered into the system. For example, in 
17 percent of the files that we looked at, the data recorded in 
CRES was not supported by the documents in the complaint files. 
So there needs to be a process to validate the accuracy of the infor- 
mation entered into the system. 

Third, we found that, while Civil Rights had made progress in 
managing its physical case files, it still needed to establish ade- 
quate controls over its file room operations. We asked Civil Rights 
to review 64 complaint files as part of our review. Of the 64, the 
office could not locate readily 15 of the files. It took more than a 
month to locate 13 of them. The 14th one was never found and had 



93 


to be recreated. And the 15th one was provided to us 6 months 
after we had requested it. 

As a result of our review, we made recommendations to address 
all of these issues, and the Office of Civil Rights has agreed to im- 
plement all of them. 

Where we are, in conclusion, is that we believe that the process- 
ing of Civil Rights complaints continues to be a significant manage- 
ment challenge for USDA. It is very important to employees and 
participants to get timely action on their complaints, and we appre- 
ciate the interest that you have shown in these matters. We look 
forward to working with you and with the Assistant Secretary, and 
we also want to express our appreciation to the Assistant Secretary 
for her cooperation in our audit. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. Fong follows:] 



94 


UNITED STATES DEPARTMENT OF AGRICULTURE 
OFFICE OF INSPECTOR GENERAL 

STATEMENT OF THE HONORABLE PHYLLIS K. FONG 
INSPECTOR GENERAL 

Before the 

Subcommittee on Government Management, Organization, and 
Procurement 

Committee on Oversight and Government Reform 
U.S. House of Representatives 

May 14, 2008 







95 


1 


Thank you, Chairman Towns and Ranking Member Bilbray, for the opportunity to testify 
before the Government Management Subcommittee on the Department of Agriculture’s 
(USDA) civil rights programs. I appreciate the opportunity to discuss the oversight work of 
the Office of Inspector General (OIG) regarding USDA’s management actions on civil rights 
complaints and related concerns. 

Ensuring fair treatment and due consideration for all USDA stakeholders and employees must 
be a matter of daily emphasis for USDA’s agencies and offices. OIG has developed an 
extensive record of oversight work regarding civil rights issues at USDA in fulfilling our 
statutory responsibilities and mission. 

1. Prior OIG Oversight Regarding Civil Rights Management Issues 

Before describing OIG’s most recent work, 1 would like to provide an overview for the 
Subcommittee of our earlier civil rights audits. This may provide helpful context for you in 
assessing USDA’s progress in handling civil rights complaints and the challenges that remain 
today. 

The processing of civil rights complaints within USDA and ensuring equitable treatment of 
the groups served through USDA programs have been areas of long-standing concern. 
Overall, OIG has issued 11 audits on civil rights issues and corresponding management 
challenges within a 10-year period. Many of the issues addressed in our most recent 
oversight work date back to our findings in the late 1990s, when widespread concerns arose 
about potential discrimination and/or serious administrative problems in USDA operations. 



96 


2 


Office of Inspector General Reports 

Issued on Civil Rights 

1997-2007 

Report No. 

Title 

Issued 

50801-2-HQ 

Evaluation Report for the Secretary on Civil Rights 
Issues 

February 1997 

50801-3-HQ 

Minority Participation in Farm Service Agency’s Farm 
Loan Programs 

September 1997 

50801-4-HQ 

Nationwide Data on Minority Participation in Farm 
Service Agency’s Farm Loan Programs 

December 1997 

50801-5-HQ 

Implementation of OIG’s Recommendations - 
Department’s Civil Rights Complaint System and the 
Direct Farm Loan Program 

March 1998 

60801-1 -HQ 

Evaluation of the Office of Civil Rights’ Efforts to 
Reduce the Backlog of Program Complaints 

September 1998 

60801-2-HQ 

Evaluation of the Office of Civil Rights’ Efforts to 
Implement Civil Rights Settlements 

March 1999 

60801-3-HQ 

Office of Civil Rights Management of Employment 
Complaints 

March 2000 

60801-4-HQ 

Office of Civil Rights Status of the Implementation of 
Recommendations Made in Prior Evaluations of 
Program Complaints 

March 2000 

60016-1-Hy 

Follow up on Prior Recommendations for Civil Rights 
Program and Employment Complaints 

September 2005 

03601-1 1-At 

Minority Participation in Farm Service Agency’s 
Programs 

November 2005 

60601-4-Hy 

Review of the U.S. Department of Agriculture’s 
Accountability for Actions Taken on Civil Rights 
Complaints 

May 2007 


At the request of the Secretary, Congress, and also on our own initiative, OIG began what 
became a broad, multi-phased series of audits on civil rights topics in 1997. Over the next 
4 years, we conducted 8 audits that ultimately produced 119 recommendations to improve 
USDA’s civil rights performance and/or processes. These OIQ audits examined issues such 
as minority participation in the Farm Service Agency’s (FSA) farm loan programs, and 
evaluated the Office of Civil Rights’ (CR)' efforts to reduce the backlog of complaints and 
implement civil rights settlements. Our audits during this 4-year period found no systemic 
discriminatory practices in USDA farm programs. However, we did identify repeated 


In 2007, this office was renamed the Office of Adjudication and Compliance (OAC). 



97 


3 

problems with respect to procedures, staffing, leadership, and corrective actions by USDA 
entities pertaining to civil rights complaints. 

OIG’s analysis of the more than 40 findings produced by these audits identified recurring 
themes underlying the problems USDA was experiencing. These themes are relevant to 
today’s hearing because, in our view, they identify fundamental issues that need to be 
substantially addressed if USDA is to resolve long-standing concerns. The recurring themes 
are continuous internal reorganization within the Civil Rights office; turnover at both 
management and staff levels; lack of effective leadership, accountability, and follow-through 
to correct reported problems; and lack of adequate management controls and formal 
operational procedures to track and monitor progress in achieving results. 

In our March 2000 report^ that examined CR’s handling of employment civil rights 
complaints, we found weaknesses in its operations for tracking and processing the complaints 
inventory. We also found that complaint files were not properly managed. At that time, CR 
took an average of 2 years to close a case. 

Some of the more far-reaching OIG recommendations emanating from these multi-phased 
reviews are worth noting. OIG recommended that USDA improve its outreach and technical 
assistance to minorities; work to increase the number of minority employees in county 
offices; and establish a settlement review team to ensure compliance with relevant statutes 
and regulations. Because of the serious deficiencies in the management of USDA’s civil 
rights program disclosed during our audits, in 1998 we also recommended that the Secretary 
establish the position of an Assistant Secretary for Civil Rights (ASCR) to resolve 
crosscutting issues between USDA agencies and CR. In 2003, Congress sought to address 
these issues by statutorily establishing the Office of the Assistant Secretary for Civil Rights in 
order to consolidate responsibility for USDA’s civil rights programs and give them higher 
visibility. 


Office of Civil Rights Management of Employment Complaints, Report No. 60801-03-Hq, March 2000. 



98 


4 


11. Recent OIG Evaluations of Agency Corrective Measures and Civil Rights Processes 

OIO issued two reports in the fall of 2005, after the creation of the ASCR position in the 2002 
Fann Bill. The first was our review of CR’s implementation of 43 OIG recommendations that 
focused on the agency’s management of program and employment complaints.^ OIG 
determined that approximately half of the recommendations had been implemented; we 
found, however, that the lack of a functioning audit liaison impaired CR’s ability to monitor 
and substantiate corrective actions regarding management responsibilities. We recommended 
that an individual be designated who would systematically follow up on audit 
recommendations, implement a system of controls to monitor corrective actions, and formally 
report those actions to USDA’s Office of the Chief Financial Officer (OCFO).'’ 

Our second report assessed whether FSA had made progress towards repairing its relationship 
with minority farmers.^ We found that CR and FSA had made significant improvements 
from 1997 to 2000 as shown by the following statistics: the number of program civil rights 
complaints was reduced by over 75 percent; processing times for minority loan applications 
were reduced by 29 percent; and the number of delinquent minority borrowers was reduced 
by over 90 percent. OIG also identified areas where further CR/FSA improvements were 
needed, such as CR not having performed recent compliance reviews of FSA programs to 
determine whether the agency’s practices complied with civil rights statutes. Our report 
recommended that CR resume conducting compliance reviews and that FSA strengthen its 
performance in providing outreach to underserved producers. 


’ Followup on Prior Recommendations for Civil Rights. Report No. 600 1 6- 1 -Hy, September 2005 . 

'* USDA agencies submit documentation to OCFO on corrective actions taken in response to OIG 
recommendations. OCFO evaluates the documentation to determine if the intent of the recommendation has 
been met and final action has occurred. 

* Minority Participation in Farm Service Agency 's Farm Loan Programs, Report No. 0360 1 - 1 1 -At, 
November 2005. 



99 


5 


Assessing USDA 's Management Controls and Actions on Civil Rights Complaints 

OlG’s most recent audit® on civil rights issues at USDA was our May 2007 review to 
evaluate USDA’s progress in addressing Equal Employment Opportunity (EEO) complaints 
and employee accountability for discrimination/ Specifically, we assessed the adequacy of 
CR’s controls over the tracking and processing of EEO complaints and its processes to hold 
employees accountable for discriminatory actions towards USDA employees or in 
administering USDA programs. To conduct our audit, OIG interviewed managers and staff 
of both CR and the agencies and Departmental officials regarding the tracking of complaints 
and CR’s employee accountability process. OIG also reviewed EEO complaint data from 
CR’s new Civil Rights Enterprise System (CRES) for over 1,400 formal EEO complaint 
cases that were initiated over a 33-month period from October 2003 through June 2006. 

In describing the key findings and recommendations of OIG’s audit for the Subcommittee, I 
will focus on our evaluation of the three primary management issues that are relevant to 
today’s hearing. They were OIO’s assessment of (1) CR’s controls for processing EEO 
complaints in a timely manner, (2) CR’s controls over its complaint tracking system, and 
(3) CR’s control over the physical case files for EEO complaints. I will address each of these 
issues in turn. 

CR 's Controls Over the Time Required to Process Complaints 

OIG found that CR had made improvements in the amount of time needed to process 
complaints, but we also determined that additional efforts are needed to close them within an 
acceptable timeframe. We found that CR’s processing time to complete an EEO complaint 
case averages just under 1.5 years; while this was a significant improvement over the 3-year 
average in 1997, it still exceeds the 270-day processing timeframe established by the Equal 
Employment Opportunity Commission (EEOC). It is important to note that processing EEO 


” This audit was initiated at the request of the Chairman, U.S. Senate Committee on Agriculture, Nutrition, and 
Forestry. 

’ Review of the U.S. Department of Agriculture ’s Accountability for Actions Taken on Civil Rights Complaints, 
Report No. 60601-04-Hy, May 2007. 



100 


6 

complaints at USDA is a shared responsibility. Each individual USDA agency (not CR) is 
responsible for processing and entering data into CRES during a complaint’s informal stage 
and for investigations and hearings during its formal stage. CR is responsible for processing 
and entering data in CRES for the acceptance or dismissal of complaints and final agency 
decisions during the formal stage. CR also has overall responsibility for ensuring that USDA 
is accurately reporting its EEO activities and timely processing its EEO complaints. OIG’s 
audit determined that CR did not have an adequate monitoring framework to track the 
processing of complaints and to intervene when timeframes were not being met. The former 
CR Director advised that the EEOC 270-day threshold is unrealistic in certain cases and said 
additional factors (such as the substantial inventory of backlogged complaints, an influx of 
new cases, available staffing and resources, and individual USDA agencies not meeting their 
responsibilities) contribute to cases extending beyond that timeframe. 

OIG made two recommendations to CR to improve its timelines.s in processing complaints. 
First, we recommended that CR develop a detailed, formal plan to process EEO complaints 
more efficiently, including action items to address system weaknesses and measurable 
timelines for completing those actions. Second, CR should implement controls to monitor 
complaints processing and intervene when timeframes are not met. These controls should 
include reporting mechanisms to the CR Director about why specific cases are exceeding 
established timeframes. While CR agreed to both OIG recommendations, it has yet to submit 
an acceptable corrective action plan that establishes controls to monitor the processing of 
complaints and to intervene when timeframes were not being met. 

CR ’s Controls for its Complaints Tracking System 

In February 2005, CR began its implementation of CRES, a Web-based application that 
enabled USDA agencies and CR to use one automated system for processing and tracking 
EEO complaints at both the informal and formal stages. CR and USDA agencies enter 
complaint data into CRES, and CR utilizes this data to complete and file required reports. 
OIG’s audit determined that CR had implemented CRES without sufficient business rules to 



101 


7 

ensure the completeness of the complaint data being entered.* For example, required data 
about alternate dispute resolution were not entered for approximately 42 percent of the cases 
entered in CRES. OIG further selected a sample of 63 specific case files to reconcile 
information recorded in CRES with documentation recorded in the case file. Our review 
found that in 17 percent of these files, the data recorded in CRES were not supported by the 
physical documentation. At the time of our audit, CR had not implemented a process to 
validate the accuracy of information entered into CRES. CR also did not have an established 
data verification process to ensure the integrity of data contained in CRES. This reduced 
CRES’ reliability as a source of accurate and complete information about EEO complaints at 
USDA. 

To improve the sufficiency of the information contained in CRES, we recommended that CR 
identify all the business rules necessary for entering complaint data into the system. 
Thereafter, CR should implement a plan with action items and timeframes to develop and 
apply the necessary business rules. CR agreed to develop and implement a formal process to 
validate the accuracy of information entered into CRES. CR advised OIG that its corrective 
measures would include the use of an automated quality control tool and audits of data 
accuracy that would be conducted by agency staff who are not involved in the initial data 
entry. 

Controls for Properly Maintaining Complaint Case Files 

The management and handling of CR’s physical case files was identified as a significant 
problem in OIO’s March 2000 report. Our May 2007 audit included an examination of 
similar issues regarding CR’s performance in properly filing, storing, and safeguarding the 
physical documents that comprise an EEO complaint case file, OIG determined that CR has 
made some progress towards organizing, maintaining, and properly storing case files. 
However, we also found that as of the time of our audit, CR had not established adequate 
controls over its file room operations and did not have effective procedures to ensure that the 
files contained all the relevant case documentation. 

* Business rules are protocols in the system intended to prevent omissions of data by end users for required 
stages in the EEO process. 



102 


8 

During the audit, we requested 64 complaint files to review. CR could not readily locate 15 of 
the files and took more than a month to locate 13 of them. CR had to recreate another file for 
our review and did not provide us the last file until after field work was completed, or 
6 months after our request to review it was made. We concluded CR lacked procedures to 
control and monitor the physical location of files. We also observed that the EEO case files 
were not physically stored in a systematic and well-organized manner, which leads to 
problems when files need to be located and updated. 

According to data recorded in CRES, as of October 2006, CR was also storing over 5,700 
closed case files that exceeded USDA’s 4-year retention requirement. CR officials advised 
that some cases closed beyond the 4-year requirement are not necessarily ready for 
destruction, such as those pertaining to cases being litigated. CR had not performed a physical 
inventory to determine the location of such cases or the number of files that may be suitable 
for destruction. In one-third of the 63 physical case files OIG reviewed, we found that the 
files were missing required documentation such as counselors’ reports, the report of 
investigation, settlement agreements, final agency and administrative judges’ decisions, and 
withdrawal letters. As a result, CR did not have documentary assurance in these cases that its 
actions were supported. CR officials advised OIG that procedures were being developed to 
specify personnel responsibilities for filing and safeguarding EEO complaint documents and 
improving its file room operations. The CR Director stated that the office is moving towards 
a paperless environment and agreed that interim controls (such as contractor support) were 
needed to strengthen this element of CR’s operations. 

OIG made several recommendations to improve CR’s control over its physical case files. We 
recommended that CR perform a physical inventory of complaints and case files to determine 
their proper disposition, implement a formal plan to identify and dispose of paper files that no 
longer need to be maintained, and develop procedures to better control the flow of the 
documents associated with EEO complaints. CR agreed to OIG’s recommendations and 
stated that it was in the process of institutionalizing its records management procedures. 



103 


9 


III. Processing Civil Rights Complaints is a Management Challenge for USDA 

As you know, the Reports Consolidation Act of 2000 requires Federal OIGs to issue an 
annual report identifying the significant management challenges facing their parent 
departments or entities.’ The processing of civil rights complaints was included in the first 
Management Challenges report issued by OIG under the new law in 2002. Wc considered this 
a significant challenge facing the Department because of the systemic problems our audits 
had identified with the controls and management of civil rights complaints by USDA. 
However, in 2005, OIG removed civil rights issues as one of the elements of our 
Management Challenges report. OIG did so after performing two civil rights-related audits. 
These audits found that the FSA civil rights complaint backlog had been resolved and the 
ASCR had developed 13 initiatives to address longstanding problems regarding the 
processing of complaints. We believed these actions would, if implemented, address our prior 
recommendations concerning complaint management and processing. 

However, our 2007 audit found that CR did not follow through to implement these initiatives. 
We found continuing, lengthy, and/or ineffective processing of civil rights complaints. 
Therefore, we reinstated civil rights as a significant challenge facing USDA in our 2007 
Management Challenge report. This action reflected our concern that the inadequate 
processing of complaints could reduce the public’s confidence in USDA’s ability to 
administer and address civil rights activities. 

In closing, Mr. Chairman, 1 want to again thank you for offering me the opportunity to testify 
before the Subcommittee regarding our oversight work on civil rights issues. I also want to 
express my thanks to Assistant Secretary Margo McKay for the assistance and cooperation 
her office extended to OIG during our most recent audit and for her work to reach 
management decision with OIG on our recommendations. 

This concludes my testimony. I would be pleased to address any questions you may have. 


Public Law 106-53 1 {November 22, 2000), 



104 


Mr. Towns. Thank you so much for your testimony, Ms. Fong. 
Ms. Shames. 


STATEMENT OF LISA SHAMES 

Ms. Shames. Chairman Towns, I am pleased to he here today to 
discuss the Department of Agriculture’s progress in addressing 
longstanding Civil Rights issues. As you know, for years USDA has 
been the focus of reviews into allegations of discrimination against 
minorities and women, both in its programs and in its work force. 
Many, including the Congress, the Civil Rights Commission, the 
EEOC, USDA’s own Inspector General, as well as GAO have pro- 
vided constructive analyses and made recommendations to improve 
its Civil Rights efforts. Unfortunately, based on GAO’s work to 
date, we find that USDA’s management of its Civil Rights efforts 
continues to be deficient. 

Specifically, we found persistent problems in resolving discrimi- 
nation complaints, unreliable reports on minority participation in 
USDA programs, and limited planning to ensure USDA’s services 
and benefits are provided fairly and equitably. 

First, regarding discrimination complaints, when the Office of 
the Assistant Secretary was established in 2003, one of its top pri- 
orities was to reduce the backlog and inventory of discrimination 
complaints that it had inherited. Four years later, the office’s 
progress report, entitled. The First One Thousand Days, stated 
that the backlog had been reduced and the inventory was manage- 
able; however, the disparities we found in the numbers USDA re- 
ported to the Congress and the public undermined the credibility 
of any claims. We found numerous disparities, and some of these 
disparities were in the hundreds. 

For example, in this progress report released in July 2007 USDA 
reported the number of customer complaints was stated to be 404 
in its inventory at the end of fiscal year 2005. However, 1 month 
earlier, USDA reported to this subcommittee that the number of 
complaints in its inventory was 1,275. USDA qualified this number 
and other numbers to this subcommittee as the best available and 
acknowledged that they were incomplete and unreliable. 

USDA is aware of these issues; however, fundamentally there ap- 
pears to be a lack of management attention to resolving the back- 
log of complaints. For example, we would have expected routine 
management reports to track these cases, but we were told none 
are generated, because they are not required by law. 

We are pleased to hear that Ms. McKay is now going to be re- 
quiring the sorts of reports that are intended to bring consistent 
management attention. 

Second, regarding minority participation in USDA programs. 
Congress required USDA to report annually on minority farmers’ 
participation in USDA programs by race, ethnicity, and gender. 
USDA issued three reports for fiscal years 2003, 2004, and 2005; 
however, USDA disclosed that its demographic data in these re- 
ports are unreliable because they are largely based on visual obser- 
vation. The drawback to visual observation is that some demo- 
graphic traits may not be readily apparent to an observer. 

Collecting demographic data directly from program participants 
requires approval from the Office of Management and Budget 



105 


[OMB], USDA started to seek OMB’s approval to collect these data 
in 2004, but did not follow through because we were told of insuffi- 
cient resources. According to USDA officials, they are planning fu- 
ture actions to obtain the necessary authority. 

In addition, we found the Web-based supplementary data for 
these reports to be of limited usefulness. They are published in 
over 1,300 separate tables and 146 maps. This format does not fa- 
cilitate analysis such as comparing minority participation by pro- 
gram, location, and year. 

Finally, regarding planning to ensure USDA’s services and bene- 
fits are provided fairly and equitably, results oriented strategic 
planning provides a road map that clearly describes what an orga- 
nization is attempting to achieve, and over time it can commu- 
nicate to the Congress and the public about what has been accom- 
plished. While the Office of the Assistant Secretary has defined its 
mission and strategic goal, looking forward stakeholders’ interests 
should be more explicitly reflected in the planning. 

For example, our interviews with stakeholders informed us that 
their interests include assuring the diversity of the USDA’s county 
committee system and better addressing language differences, 
among other things. 

Data collection to demonstrate progress toward achieving its mis- 
sion and goal is an important next step for measuring performance. 
A discussion on how data collected by other USDA agencies, such 
as a National Agricultural Statistics Service or the Economic Re- 
search Service is especially important in an era of limited re- 
sources. 

Last, using data to identify gaps can help USDA improve per- 
formance on its Civil Rights efforts. For example, in 2002 GAO rec- 
ommended that USDA establish time requirements for all stages of 
the complaint process. With these standards, along with routine 
management reports to track cases along the lines of what we just 
heard, this office can begin to troubleshoot its most problematic 
areas. 

In conclusion, USDA has been addressing allegations of discrimi- 
nation for years. One lawsuit has cost taxpayers nearly $1 billion 
to date, and several other groups are seeking redress for similar al- 
leged discrimination. Despite the numerous past efforts to provide 
USDA with constructive analyses and recommend actions for im- 
provement, significant management deficiencies remain. Such re- 
sistance to improve its management calls into question USDA’s 
commitment to more efficiently and effectively address discrimina- 
tion complaints both within its agency and across its programs. 

This concludes my prepared statement, and I would be pleased 
to answer any questions. 

[The prepared statement of Ms. Shames follows:] 



106 


GAO 


United States Govemment Accountability Office 

Testimony before the Subcommittee on Govemment 
Management, Organization, and Procurement, 
Committee on Oversight and Govemment Reform, 
House of Representatives 


For Release on Delivery 
Expected at 2:00 p.m. EDT 
Wednesday, May 14, 2008 


U.S. DEPARTMENT OF 
AGRICULTURE 

Management of Civil Rights 
Efforts Continues to Be 
Deficient Despite Years of 
Attention 


statement of Lisa Shames, Director 
Natural Resources and Environment 



GAO 

Accountability * Integrity * Reliability 


GAO-08-755T 






107 


GAO 

Highlights 

: HighiigMs of GAO-08r755T, a te^imonSfssB'^ 
before, the Si^ommittee qri Goverrip^S; 
Management. Oiganizatton, and 
Procurement j Committee on Oversi^t^MKi 
and Government Reform, House of > 

Representatives 

Why GAO Did This Study 


For tlecdtifs, there have boon 
Rogations of (liscriminalioii ' 

U.S. Dep^ment of Agricullute;V,‘.' 
(USDA) progrMtis and workf®^v 
B^)or^ and concessional 
testmioiQr by the U.S; Commi^i^ 
on Civil Rights, the U.S i 
E mployment C^portuhity 
Commission, a former ^ct efeiy of 
Ag3riGtdture,USDA’s Office otefli- 
Inspector General, GAO, andritheis . 
hSive descrited wealdiesses 5 ? 

. USDA’s programs--*in parUc^^^. 
reaving complaints of ■ ;f 

discTimination and in providii^ 

Farm Security and Rural 
. Investment Act of 2002 auth(ip|ed 
th^ creation of the position of "' . 

; Assistant Secretaiy forCni^ ^ghts ; > 
(ASCR), giving I "^UA.tri \ cut** 
that could provide leaderslupfbr , 

;v r^ol!^ng ffiese long-stenduig; 


This testimonsr^focusQS on 1 ISDA s 
elfrinsio 1 ■ resoKediscnmiiidtjnii 
complaints, (S) report on miiun it r 
participation ih L'SDA programs 
and i:)< HiraiegicBliy plan itn efTini** 
Tliuiiest mun> 18 based on ne%v .1.1(1 
pnor work, indttding analysis ot 
ASCR’ss 

urtt 


m uiagomt nr and aliuin 120 
iiirerMi'ws with ofikaals of \ 
and other todml agencies as well 
as 20 USD \ siakeh^der ^raui- ** 

USDA officials reviewed the tacts 
upon which this statement is based, 
and we incorporated their 
admtions and clarifications as 
appropriate GAO plans a future 
report with recommetui itions. 


To view thefuji (KOdUct, inctuding .th« scope 
an(} methodology, click on GAO-08-755T; ' 
For more irifornudion, contact Usa Shames'^'’ 
at(a)2)Sl2-2649or^niesl@ga,o.gbVj. . 


U.S. DEPARTMENT OF AGRICULTURE 

Management of Civil Rights Efforts Continues to Be 
Deficient Despite Years of Attention 


What GAO Found 

ASCR’s difficulties in resolving discrimination complaints persist — ^ASCR has 
not achieved its goal of preventing future backlogs of complaints. At a basic 
level, the credibility of USDA’s efforts has been and continues to be 
undermined by ASCR’s faulty reporting of data on discrimination complaints 
and disparities in ASCR’s data. Even such basic information as the number of 
complaints is subject to wide variation in ASCR’s reports to the public and the 
Congress. Moreover, ASCR's public claim in July 2007 that it had successftilly 
reduced a backlog of ^out 690 discrimination complaints in fiscal year 2004 
and held its caseload to manageable levels, drew a questionable portrait of 
progress. By July 2007, ASCR officials were well aware they had not 
succeeded in preventing future backlogs — they had another backlog on hand, 
and this time the backlog had surged to an even higher level of 885 
complaints. In fact, ASCR officials w’ere in the midst of planning to hire 
additional attorneys to address that backlog of complaints including some 
ASCR was holding dating from the early 2000s that it had not resolved. In 
addition, some steps ASCR had taken may have actually been counter- 
productive and affected the quality of its work. For example, an ASCR official 
stated that some employees’ complaints had been addressed without resolving 
basic questions of fact, raising concerns about the integrity of the practice. 
Importantly, ASCR does not have a plan to correct these many problems, 

USDA has published three annual reports — for fiscal years 2003, 2004, and 
2005— on the participation of minority farmers and ranchers in USDA 
programs, as required by law. USDA's reports are intended to reveal the gains 
or losses that these fanners have experienced in their participation in USDA 
programs. However, USDA considers the data it has reported to be unreliable 
because they are based on USDA employees’ visual observations about 
participant’s race and ethnicity, which may or may not be correct, especially 
for ethnicity. USDA needs the approval of the Office of Management and 
Budget (0MB) to collect more reliable data. ASCR started to seek OMB’s 
approval in 2004, but as of May 2008 had not followed through to obtain 
approval. ASCR staff will meet again on this matter in May 2008. 

GAO found that ASCR’s strategic planning is limited and does not address key 
steps needed to achieve the Office’s mission of ensuring USDA provides fair 
and equitable services to all customers and upholds the civil rights of its 
employees. For example, a key step in strategic planning is to discuss the 
perspectives of stakeholders. ASCR’s strategic planning does not address the 
diversity of USDA’s field staff even though ASCR’s stakeholders told GAO that 
such diversity would facilitate interaction with minority and underserved 
farmers. Also, ASCR could better measure performance to gauge its progress 
in achieving its mission. For example, it counts the number of participants in 
training workshops as part of its outreach efforts rather than access to farm 
program benefits and services. Finally, ASCR’s strategic planning does not 
link levels of funding with anticipated results or discuss the potential for using 
performance information for identifying USDA’s performance gaps. 

iinitorf States Government Accountability Office 


108 


Mr. Chairman and Members of the Subcommittee: 

I am pleased to be here today to discuss the U.S. Department of 
Agriculture’s (USDA) progress in addressing long-standing civil rights 
issues. My comments today are based on prior work as well as new work 
nearing completion resulting from a request from Senator Harkin, 
Chairman of the Senate Committee on Agriculture, Nutrition, and 
Forestry; Senators Grassley and Lugar; and Chairman Baca of the 
Subcommittee on Department Operations, Oversight, Nutrition, and 
Forestry, House Committee on Agriculture; as well as you, Chairman 
Towns. 

USDA is responsible for enforcing statutes, regulations, and policies that 
prohibit discrimination in its programs and workplace. USDA’s 
responsibilities extend to the programs that it delivers directly to 
customers through local offices throughout the country, such as the farm 
loan programs, as well as to programs that USDA and the states administer 
jointly, such as the Food Stamp Program. USDA’s workplace civil rights 
responsibilities cover about 100,000 employees at headquarters and at 
USDA offices around the country. 

For decades, USDA has been the focus of federal inquiries into allegations 
of discrimination against minorities and women both in the programs it 
administers and in its workforce. Numerous reports and congressional 
testimony by officials of the U.S. Commission on Civil Rights, the U.S. 
Equal Employment Opportunity Commission, USDA, GAO, and others 
have described extensive concerns about discriminatory behavior in 
USDA’s delivery of services to program customers — in particular, minority 
fanners — and its treatment of ntinority employees. Many of these reports 
and testimonies described serious weaknesses in USDA’s management of 
its civil rights programs — in particular, weaknesses in providing minorities 
access to USDA programs and in resolving discrimination complaints. 

Notable among these many reports was the 1997 report of the Secretary of 
Agriculture’s Civil Rights Action Team.' The Secretary’s tean\ — composed 
of senior USDA officials — held a dozen “listening sessions” with USDA 
customers and employees throughout the country before issuing a report. 
The team’s report discussed USDA’s customers’ and employees’ concerns 


^OivU Rights at the United States Department of Agricultaie.: A Report by the Civil Rights 
Action Team, U.S. Department of Agriculture (Washu'tgton, D.d: Febniary 1997). 


Page 1 


GAO-08-7S5T USDA Civtl Rights 




109 


about patterns of discrimination in USDA programs and operations, and 
minority farmers’ concerns that USDA had played a part in the severe 
decline in minority farm ovmership since the mid-1900s. Among other 
things, the import noted that USDA’s civil rights program had been in a 
“persistent state of chaos” because of numerous changes since the 1980s 
and declared that USDA’s process for resolving complaints about the 
delivery of program benefits and services was a “failure.” The report made 
many recommendations in four rngjor areas — organizational structure, 
management commitment, program delivery and outreach, and workforce 
diversity and employment practices. 

In addition to reports about USDA’s civil rights shortcomings, individuals 
and groups claiming discriminatory behavior on the part of USDA have 
sought redress through the courts — USDA has been and continues to be 
involved in large class action civil rights lawsuits.^ In 1997, three African- 
American farmers, on behalf of themselves and others similarly situated, 
filed a lawsuit — Pigiford v. Glickman — that charged USDA with 
discrimination in the department’s lending and other farm programs 
between 1983 and 1997, as well as with failure to properly Investigate 
discrimination complaints. ' The case went forward as a class action, and in 
January 1999 a settlement ^eement was announced. In approving the 
consent decree settling the case, the court stated that for decades USDA 
had discriminated against African-American farmers by denying or 
delaying their applications for farm loan and other cre<iit and benefit 
programs. The court also noted that USDA had disbanded its Office of 
Civil Rights in 1983 and stopped responding to claims of discrimination. 
The consent decree established a mechanism for members of the class to 
file claims to obtain relief. Over 97,000 people have filed claims — more 
than five times the number of claims anticipated. However, only about 
23,000 people met the filing deadline of October 12, 1999, and about 74,000 
people requested permission from the court to file a claim after the 
deadline. Except for a relatively few extraordinary cases, the court denied 
the claims received after the filing deadline as not timely. Overall, as of 
April 7, 2008, more than 15,400 claims had been approved for payments 
and benefits totaling about $972 million, and almost 7,000 claims had been 


clas-s actjon lawsuit is one in which a party sue.s on bchaif of him or herself and a larger 
group similarly situated. 

"'Pigford v. Schafer, Civil Action No. 97-1978 (D.D.C. filed Oct, 23, 1997) (formerly Piaford 
V. Glickman). 


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denied/ In addition, USDA is currently defending itself against similar 
lawsuits brought by other customers — Native American, Hispanic, and 
women farmere — ^alleging discrimination in the delivery of farm programs 
and lending. ' 

A congressional hearing during 2002 focused on the need for USDA to 
ensure that, among other things, farm programs are accessible to minority 
and socially disadvantaged farmers and ranchers, complaints of 
discrimination against USDA by customers and employees are resolved 
fairly and timely, and civil rights activities are conducted transparently so 
that public scrutiny is possible. That year, as you know, the Farm Security 
and Rural Investment Act of 2002 (2002 Farm Bill) authorized the 
Secretary of Agriculture to create the new position of Assistant Secretary 
for Civil Rights, elevating responsibility within USDA for carrying out 
USDA’s civil rights efforts. Under the 2002 Farm Bill, the Secretary could 
delegate responsibility for ensuring that USDA complies with all civil 
rights-related laws and considers civil rights matters in all USDA strategic 
planning initiatives to the Assistant Secretary for Civil Rights. In 2003, the 
Assistant Secretary position was created with these and other delegated 
responsibilities, and the Office of the Assistant Secretary for Civil Rights 
(ASCR) was established. In addition, the 2002 Farm Bill requires USDA to 
report annually on minority participation in USDA programs.® 

In 2002, we reported that USDA’s Office of Civil Rights continued to face 
significant problems in processing discrimination complaints in a timely 
manner.’ We reported that the office had made only modest progress in 
processing complaints from customers and employees because (1) it had 
not established time frames for resolving complaints and (2) it had not 
addressed its severe human capital problems. For example, the office had 
long-standing problems in hiring and retaining staff with the right mix of 
skills, and severe morale problems were exacerbating problems with staff 


^Legislation has been introduced in the Congress to allow further consideration of claims 
that were not filed timely. 

^These cases include KeepseagU v. Schafer, Civil Action No. 99-031 19 (D.D.C.); Garcia v. 
Schafer, Civil Action No. 00-02445 (D.D.C.); and Love. v. Schqfer, Civil Action No. 00-02502 
(D.D.C.). 

®Pub.L. No. 107-171, 116 Stat. 134 §10708, 522 (2002). 

'GAO, Department of AgrictUture: Improvements in the Operations of the Civil Rights 
Program Would Benefit Hispanic and Other MinorUy Farmers, GAO-02-942 (Washington, 
D.C.: Sept 20, 2002). 


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productivity and retention. At that time, we recommended that USDA 
establish time frames for all stages of the complaint process and develop 
an action plan to address its staff turnover and morale problems. In 
commenting on the report, USDA stated that it had a long-term 
improvement plan that would address the human capital problems and 
agreed to formalize time frames for ail phases of the process. 

My testimony today focuses on (1) ASCR’s continuing problems in 
resolving discrimination complaints, (2) USDA's reporting on minority 
participation in USDA programs, and (3) ASCR’s strategic planning for 
ensuring USDA’s services and benefits are provided fairly and equitably. 

In summary, I would like to make three observations. First, ASCR’s 
difficulties in resolving discrimination complaints persist — ^ASCR has not 
achieved its goal of preventing future backlogs of discrimination complaints. 
At a basic level, the credibility of USDA’s efforts to correct long-standing 
problems in resolving discrimination complaints has been and continues to be 
undermined by faulty reporting of data on discrimination complaints and 
disparities we found when comparing various ASCR sources of data. Even 
such basic information as the number of discrimination complaints is subject 
to wide variation in ASCR’s reports to the public and the Congress. For 
example, fiscal year 2005 data that ASCR reported to the public and to this 
congressional subcommittee varied by hundreds of complaint cases, and data 
reported to GAO on its complaint cases varied from one report to another. 
Moreover, ASCR’s public claim in July 2007 that it had successfully reduced a 
backlog of about 690 discrimination complaints in fiscal year 2004 and held its 
caseload to manageable levels drew a questionable portrait of progress. By 
July 2007, ASCR officials were well aware the plan to prevent ffiture backlogs 
had not succeeded. ASCR had another backlog on hand, and this time the 
backlog had surged to an even higher level of 885 complaints. In fact, before 
ASCR made its report to the public in 2007, ASCR officials were in the midst 
of planning to hire additional attorneys to address the backlog of complaints, 
including some complaints that ASCR was holding dating from the early 2000s 
that it had not resolved. In addition, steps that ASCR had taken to speed up its 
investigations and decisions on complaints may actually have been counter- 
productive and affected the quality of its work. For example, an ASCR official 
stated that some employees’ complaints had been addressed without 
resolving basic questions of fact, raising concerns about the integrity of the 
practice. Importantly, ASCR does not have a plan to correct these many 
problems. 

Second, the data that USDA reported to the Congress and the public on 
the participation of minority farmers in USDA programs are unreliable, 


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according to USDA, USDA has published three annual reports on the 
participation of «>cially disadvantaged farmers and ranchers in USDA 
programs forfisc^ years 2{){^, 2004, and 2005. However, much of the data 
that USDA reports are unreliable, according to the statements in USDA’s 
reports, because USDA’s data on racial identity and gender are, for the 
most part, based on visual observation of program applicants. Data 
gathered in this manner are considered unreliable because individual traits 
such as race and ethnicity may not be readily apparent to an observer, 
especially ethnicity. To address this inherent shortcoming, according to 
USDA’s report, the agency needs standardized data collection directly 
from program participants, which requires the approval of the Office of 
Management and Budget (0MB). ASCR began the process of seeking 
OMB’s approval to collect these data in 2004, but did not follow through 
and has not obtained final approval. ASCR staff will meet again on this 
matter in May 2008. In addition, we found the data in ASCR’s reports to be 
of limited usefulness because, for example, ASCR did not include basic 
reference data such as the numbers of farmers in each county. Moreover, 
the data do not facilitate analysis because they are published in about 
1,370 separate tables and 146 maps that are not searchable files. If the data 
were searchable, it could be possible to more easily compare minority 
participation by program, location, and year. 

Finally, ASCR’s strategic planning is limited and does not address key 
steps needed to achieve its mission. While ASCR has articulated a 
compelling strategic goal — to ensure USDA provides fair and equitable 
services to all customers and upholds the civil rights of its employees — its 
implementation will require further development. For example, a key step 
in strategic planning is to discuss the perspectives of stakeholders. Yet, 
ASCR’s plans vary from ASCR’s stakeholders’ interests which include such 
things as improving USDA’s methods of delivering farm programs to 
facilitate access by under-served producers. Also, while ASCR’s 
stakeholders are interested in assuring the diversity of USDA field office 
staff to facUitate their interaction with minority and underserved farmers, 
ASCR’s strategic planning does not address the diversity of USDA’s field 
staff. In addition, ASCR could better measure performance to gauge its 
progress, and ASCR has not started to use performance information for 
identifying USDA performance gaps. 

We provided USDA officials with an opportunity to comment on a 
statement of facts which was the basis for my statement today. We 
Incorporated their additions and clarifications as appropriate. We plan to 
issue a final report later in 2008 that will include recommendations to 
addr^» the matters that I d^uss in my testimony today. 


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This testimony is on new and previously issued work. To assess ASCR’s 
efforts to r^olve USDA’s persistent problems in handling discrimination 
complaints, we conducted interviews with officials of ASCR, USDA’s Office of 
Inspector General (OIG), USDA’s agency-level cm! rights offices, and the 
Equal Employment Opportunity Commission; examined USDA documents 
about efforts to r^olve discrimination complaints, and analyzed data 
provided by ASCR To evaluate USDA’s reporting on minority participation in 
USDA’s pro^ams, we reviewed USDA reports and interviewed officials of 
USDA, community-based oi^anizations, and minority groups. To analyze 
ASCR’s strategic planning, we examined ASCR’s strategic plan and other 
relevant planning documents, and interviewed USDA officials and 
representatives of community-based organizations and minority groups, 
among others. In addition, we considered GAO’s guidance for results-oriented 
management. We conducted our work from December 2006 through May 
2008, in accordance with generally accepted government auditing standards. 
These standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our findings 
and conclusions based on our audit objectives. While our efforts were 
impeded by delays in gaining access to documents, we believe the evidence 
obtained provides a reasonable basis for our findings and conclusions based 
on our audit objectives. Additional details on our scope, methodology, and 
access to USDA records is included in appendix I. 


Background 


The Office of the Assistant Secretary for Civil Rights (ASCR) was created 
in 2()03. For fiscal year 2007, ASCR had 129 staff and an annual budget of 
about $24 million. ASCR is composed of multiple offices, some of which 
were in existence within USDA prior to the creation of ASCR. 


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Figure 1 : Organization of USDA’s Office of the Assistant Secretary for Civil Rights 



Sou>c«-U^3A 


ASCR’s Office of Ai^udication and Compliance (formerly the Office of 
Civil Rights) is to resolve customers’ and employees’ complaints of 
discrimination and to conduct civil rights compliance reviews of USDA’s 
agencies. The Conflict Prevention and Resolution Center is to provide 
guidance to USDA agencies on using Alternative Dispute Resolution 
methods to resolve conflicts. The Office of Outreach and Diversity is to 
develop ASCR’s diversity initiatives, and oversee the 1890 and 1994 
Programs. The 1890 Program offers educational scholarships to people 
seeking degrees at one of the 18 historically black land-grant institutions 
and requires one year of USDA service for each year of financial support. 
Similarly, through the 1994 Program, there is a comparable program 
operated with the 33 tribal colleges and universities designated as 1994 
land-grant Institutions. Within the Office of Outreach and Diversity, the 
Office of Outreach is to provide coordination for USDA agencies on 
outreach efforts and produce a required annual report on the rates at 
which minorities participate in USDA programs. 

The first USDA Assistant Secretary for Civii Rights — ^Mr. Vernon Parker — 
was sworn in on April 1, 2003, and served about 3 years until resigning in 
January 2006. At the outset of Mr. Parker’s tenure, over a 4 month period, a 


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few ASCR staff developed 13 imtiadves to guide ASCR’s actions through 
fiscal year 2004 and beyond. These initiatives were intended to address the 
most immediate problems occurring at the time and concentrated on 
eliminating backlc^ of unresolved discrimination complaints and taking 
certain steps to reduce complaints in the future. Most notably, ASCR 
established annual “Partners Meetings” to create, for the first time, a 
substantive and ongoing dialogue between USDA and representatives of 
community-based organizations as a basis ibr improving the delivery of 
USDA benefits and services. A list of ASCR’s initiatives for fiscal year 2004 
is included in appendix II. The second and current Assistant Secretary for 
Ci-rii Rights — Ms. Margo McKay — was sworn in on August 21, 2006. A list 
of Assistant Secretary McKay’s priorities and initiatives are also included 
in appendix U. 


Problems Resolving 
Discrimination 
Complaints Persist 


'fhe credibility of USDA’s efforts to correct long-standing problems in 
resolving discrimination complaints has been and continues to be 
undermined by faulty reporting of data on discrimination complaints and 
disparities we found when comparing various ASCR sources of data.*’ For 
example, fiscal year 2005 data that ASCR reported to the public and to this 
congressional subcommittee varied by hundreds of complaint cases, and data 
reported to GAO on its complaint cases varied from one report to another. 
Moreover, ASCR’s public cUim in July 2007 that it successfoliy reduced a 
backlog of about 690 discrimination complaints in fiscal year 2004 and held its 
caseload to manageable levels through fiscal year 2005 drew a questionable 
portrait of progress. By July 2007, ASCR officials were well aware that the 
plan to prevent future backlogs had not succeeded. ASCR had another 
backlog on hand, and this time the backlog had surged to an even higher level 
of 885 complaints. In fact, before ASCR made its report to the public in 2007, 
ASCR officials were in the midst of planning to hire attorneys to address the 
backlog of complaints, including some complaints that ASCR was holding 
dating from the early 2000s that it had not resolved. In addition, some steps 
that ASCR had taken to speed up its investigations and decisions on 
complaints appear to have affected the quality of its work. These on-going 
problems are a continuation of the inadequate conditions that we and 
USDA’s OIG have reported for over a decade. 


’’aSCR's backlogs of discrimination compiaints generally consist of numbers of complaints 
for which .^iCB has insufficient capacity to acUudicate promptly. 


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ASCR reporting on backlogs of discrimination compla ints has been 
faulty and contains disparities. When ASCR was created, there was an 
existing backlog of complaints. In recognition of this problem, USDA’s 
Assistant Secretary for Civil Rights made discrimination complaint 
inventory reduction ASCR’s highest priority initiative. This initiative called 
for ASCR’s senior managers and employees to make a concerted 12- 
month, $1.5 million effort to reduce the backlog of complaiints that they 
had inherited. Moreover, according to a briefing book ASCR prepared for 
the Senate Committee on Agriculture, Nutrition, and Forestry, this 
complaint inventory reduction initiative was to put lasting improvements 
in place to prevent future complaint backlogs. It also stated that USDA’s 
Office of Civil Rights would focus substantial resources on fair, equitable, 
and legally supportable resolution of cases. 

About 4 years later, in July 2007, ASCR released a report to the public 
stating that its fiscal year 2004 backlog reduction initiative was a success.” 
The report stated that the backlog of 573 complaints from employees and 
120 complaints from customers had been resolved, and that ASCR had 
held the complaint inventory to manageable levels through fiscal year 
2005. However, the data ASCR reported lack credibility because a month 
earlier the Office had reported different data to this congressional 
subcommittee (see Table 1). Specifically, according to the June report, the 
numbers of complaints at the beginning of fiscal year 2005 was 562; 
according to the July report, the number was 363. Moreover, the June 
report cited the number of complaints at the end of fiscal year 2005 as 
1,275, and the July report said it was 404. The lower numbers reported to 
the public were not qualified and provided a more favorable impression 
than the data reported to this subcommittee. However, the Assistant 
Secretary’s letter transmitting data to the subcommittee contained a 
footnote qualification stating that USDA’s statistics on customers’ 
complaints were the best available, although they were incomplete and 
unreliable. Before that letter was sent, ASCR’s former Director, Office of 
Adjudication and Compliance"* (former Office of Civil Rights), who had 
responsibility for the data, cautioned the Assistant Secretary about the 
poor data quality and stated that, if questioned, USDA would not be able to 
explain its data. 


”lJSDA. First 1,000 Days, 2003-2006 (Washington, D.C,; July 2007). 

*”We conducted our interviews with the former Director, Office of Adjudication and 
Compliance, prior to her resignation at about the end of August 2007. 


GAO-08-755T USDA Civil Rights 



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Table 1 : Fiscal Year 2005 Customer Complaint inventory as Reported by ASCR in 
June and July 2007 


Report to congressional 
subcommittee, 
June 200r 

USDA's 1,000 Days 
Report, 
July 2007“ 

Number of comf^alnts 

At the begirwting of FY 2005 

552 

363 

At the end of FY 2005 

1,275 

404 

Resolved during FY 2(X)5 

N/A 

120 


•Letter of Margo M. McKay. Assistant Secretary for Civil Rights, USDA, to the Chairman, 
Subcommittee wi Government Martagement, Organization, and Procurement, House Committee on 
Oversi^l and Government Reform. June 29, 2007. 

“USDA, First 1,000 Days. 2003-2006 (Washington, 0.C-: July 2007). 

‘As reported by USDA, without explanatiOT. 

Moreover, ASCR's July 2007 report claiming success in addressing the 
backlog of complaints is questionable because at least 2 months earlier, 
officials of ASGR and USDA’s Office of General Counsel (USDA OGC) had 
started discussing a plan of “triage” to address a backlog of complaints by 
hiring additional attorneys to draft final decisions on those cases. Also, in 
July 2007, the Assistant Secretary for Civil Rights informed us that she was 
to brief the Secretary on her plan to reduce that backlog, but was not 
comfortable sharing the plan with GAO. We later learned that ASCR had 
identified a backlog of 885 customer and employee discrimination 
complaints, according to ASCR data. Furthermore, while claiming success, 
ASCR was holding old complaints from customers that it had not resolved. 
ASCR data show, for example, that it had 46 complaints dating from 2002 
and before, which remained open at least until August 2007.“ 

Based on our interviews, wo attribute the growth of the latest backlog to 
the lack of adequate management controls and vigilance. In December 
2006, we asked ASCR’s former Director, Office of Adjudication and 
Compliance, to provide us with management reports on the status of 
discrimination complaint cases. The former Director stated that she had 
no such management reports; that management reports on customer 
complaints were not required by law; and that since a backlog had been 
addressed in 2004, she was confident that the handling of complaints since 


“in addition, during this Unie period ASCR held in abeyance complaints associated with 
pending and potential class cKtion litigation. 


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then had been timely. However, according to a briefing document that 
ASCR used within USDA: 

• The inventory of customer complaints had grown from 552 cases to i,356 
cases from the end of fiscal year 2004 to the end of fiscal year 2007. ASCR 
identified 395 customer complaints as backlogged. 

• The inventory of employee complaints stood at 1,444 cases and 1,306 cases 
at the end of fiscal years 2004 and 2007, respectively. ASCR identified 490 
employee complaints as backlogged. 

To addre^ the customers’ complaints, in August 2007 USDA contracted 
for six attorneys to draft final agency decisions and expected that this 
effort would be completed by the end of 2007. To address the employees’ 
complaints, USDA anticipated using these attorneys and to contract with 
the U.S. Postal Service as well, expecting that these cases would be 
completed by the end of fiscal year 2008. 

ASCR’s tardy case processing of certain customer complaints may prevent 
USDA from compensating a farmer even though USDA may find sufficient 
evidence of discrimination. This is because USDA believes it cannot settle 
certain claims filed with USDA once a 2-year period for filing in federal 
court has expired if the individual did not also file their claim in federal 
court, and regardless of whether the individual timely filed their claim 
with USDA.'” We are aware of one such case in which USDA found 
discrimination in 2005, but the fanner has not received a compensatory 
damage payment from USDA because the 2-year period for filing in federal 
court had expired. In addition, even though USDA’s final decision on the 
case stated that the farmer’s 1997 farm loan debt would be forgiven, a 
USDA official informed us that has not yet occurred. 

In addition, an ASCR document identified 92 cases that were being held in 
abeyance — that is, ASCR had set these cases aside from receiving a final 
decision on the merits because the complainant is, or could be, a member 
of a class action lawsuit. If these cases are not certified as class actions, 


'^A customer may file a cwvplmnt ( 1) with the agency, (2) in federal court, or (3) both. He 
or she need not file a claim with the agency before filing in federal court. Following a 
January 29, 1998 legal memorandum from the Department of Justice’s Office of Legal 
Counsel, USDA will not award administrative settlements for Equal C'rcdit Opportunity Act 
claims once the 2-year statute of limit^ions for filing such a claim in federal (;oiuf has 
passed, unless the fanner has timely filed a complaint in federal court. 


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then ASCR will consider each complaint individually. Of the 92 cases, 58 
appear to be complmnts involving farm program litigation. 

• 31 cases were classified as Keepseagle-xeXateA cases filed with USDA 
between November 1996 and January 2003. The Keepseagle case was filed 
in November 1999 and is certified as a class action case. 

• 25 cases were clarified as Garcia-related cases filed with USDA between 
March 1991 and January 2006. The Garcia case was filed in October 2000. 

• 2 cases were classified as Love-related cases filed with USDA in 1997. The 
Love case was filed in October 2000. 

We also identified one active discrimination complaint filed in 1990, 18 
years ago. This complaint involves the American Indians of the Fort 
Berthold Reservation in North Dakota.*' USDA investigated this case of 
alleged discrimination in farm lending in 1999. The lead complmnmit has 
requested USDA action many times, and in Mjurch 2008, a USDA 
administrative law judge approved this case for a decision. The judge has 
scheduled a June 2008 hearing on compensation, should he find in favor of 
the complainants. 

Data ASCR provided contains additional disparities. In addition to its 
reporting to the Congress and the public, we identified other instances of 
disparities in the data reported by ASCR on its inventories of customer 
complaints, as illustrated in the following two tables. Table 2 shows that 
ASCR reported case resolution data differently to us than it did in an 
internal departmental briefing document 5 months later. Specifically, for 
fiscal year 2006, data we were given showed 290 complaints were 
resolved, while an internal briefing showed 991. Disparities were evident 
in the earlier fiscal years as well. Table 3 shows disparities in the dates of 
10 discrimination complaint cases that ASCR provided us on two 
occasions. For example, in case number 7, data we were given first 
indicated that the case was open in May 2003, and subsequent data 
indicated 1998 or 1999, a 4- or 5-year variance. 


"a second and stearate case involving American Indians of the Port Berthold Reservation 
has been incoipor^ierl within the Keepseagle class action case. 


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Table 2: USDA Customers’ Complaints of Discrimination Resolved by ASCR, Fiscal 
Years 2004 through 2006 


Data provided to GAO 
August 2007 

USDA briefing document 
January 2008 

FY 2004 

953 

1,561 

FY 2005 

258 

N/A’ 

FY 2006 

290 

991 


Sources' ASCR dais pnividacttoGAOBi August 2007 and an ASCR bnefing documernot January 2003 

’As reported by USDA, without explanation. 


Table 3: Examples of Variations in Opening Oates of Customers’ Discrimination Complaint Cases Provided by ASCR to GAO 


Case number 
assigned by GAO 

Opening date reported to 
GAO in August 2007 

Opening date reported 
to GAO in 

January 2008 

Variance 

Case age based on 
January 2008 data 

1 

December 2005 

March 1991 

14 years 

17 years 

2 


November 1 996 


1 1 years 

3 


February 1998 

* 

10 years 

4 

* 

October 1998 

* 

10 years 

5 

• 

Octc^er 1998 

* 

10 years 

6 

• 

Octc*er 1998 

’ 

10 years 

7 

May 2003 

1998-1999 

4-5 years 

9 years 

8 

September 2001 

October 2000 

11 months 

7 years 

9 

June 2003 

June 2001 

2 years 

6 years 

10 

April 2003 

July 2002 

1 1 months 

5 years 

Source Oaia proviacO t>y USOA 


Note: These cases are being held in abeyance by USDA {not being resolved at this time) because 
they have been associated wi^ a class action lawsuit, or a potential class action lawsuit. 

‘No data on this case were provided in August 2007. 

ASCR officials and staff recognize that the data diey use are unreliable. 
They provided us with examples of known data inaccuracies, including (1) 
data that are being transferred into the new ASCR database, which is 
intended to address the existing data management problems, and (2) data 
that USDA reports to the Equal Employment Opportunity Commission on 
employees’ complaints. Other ASCR officials and staff told us that 
erroneous data had been migrated to the new database, and start-up 
problems with the new system have further contributed to data 
inaccuracies. Furthermore, ASCR staff reported that occasionally 


GAO-08-755T USDA CivU Rights 







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customers’ case files cannot be readily found, the files are missing 
documents, and sometimes the files contain documents that pertain to 
other cases. Nevertheless, while correspondence from the former 
Director, Office of Adjudication and Compliance, to IJSDA’s OIG said that 
only verified data were entered into the new system to prevent “garbage 
in, garbage out,” USDA’s OIG reported that ASCR had not implemented a 
process to validate the accuracy of its data and did not have sufficient 
controls over the entry and validation of data into its new system. 

Steps ASCR took to speed up its work affected quality. We found that as 
ASCR accelerated the pace of its work to reduce its backlogs of 
discrimination complaints in 2004, it took steps may have affected the 
quality of its work. First, ASCR’s plan to 2 iccelerate its work did not 
address how the quality of its work would be maintained. 

• ASCR’s plan called for USDA’s investigators and acOudicators, who 
prepare agency decisions, to nearly double their normal pace of casework 
for about 12 months. For example, ASCR’s investigators were expected to 
increase their productivity from about 16 to 30 cases per year. 

• One technique that ASCR adopted was to have its investigators conduct 
interviews and interrogatories by phone and email whenever possible. 

Civil rights investigative standards indicate that interviews by telephone 
are acceptable under certain circumstances, such as when there is good 
reason to conclude that the complainant is the only person affected by the 
allegations of discrimination.*^ ASCR employees told us that it is now usual 
for ASCR investigations to be conducted by phone. 

• Another feature called for one employee to respond to about 3,000 “claims 
and inquiries” submitted as a result of a letter writing campaign. However, 
the plan did not make clear what procedures ASCR staff were to use for 
reviewing and responding to these cases or the quality controls that were 
to be applied. ASCR employees reported to us that an unknown portion of 
these claims and inquiries were either lost or disregarded. 


“Department of Justice, Civil Rights Division. Investigation Procedures Manual for the 
Investigation and Resolution of CompUxinls Alleging Violations of Title VI and Other 
Nondiscrimination Statutes (Washington, D.C.: September 1998). In addition, the 
President’s Coundl on Integrity and Efficiency. Quality Standards for Investigations 
(December 2003) calls for due professional care in performing investigations by, among 
other thing.s, achieving thoroughness through the application of appropriate techniques. 


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Second, ASCR’s former Director, Office of Adjudication and Compliance, 
commented in writing on the quality of USDA’s work on employees’ 
complaints in fiscal year 2004. The former Director stated that contractors’ 
work in preparing draft decisions was fair to average and required much 
revision. In addition, the former Director related that USDA issued many 
“summary" decisions on employees’ complaints that did not resolve 
questions of fact, leading to the appeal of many USDA decisions to the Equal 
Employment Opportiinity Commission. The former Director expressed 
concern that such sununary decisions by USDA “could call into question the 
integrity of the process because important issues were being overlooked.” 

Finally, as in the past, inadequate working relationships and 
communications within ASCR have complicated its efforts to produce 
quality work products, and adversely affected employees. According to 
ASCR documents and our interviews. Instability in ASCR’s civil rights 
offices resulting from reorganizations, management and staff turnover, low 
morale, and concerns about the treatment of staff in ASCR’s civil rights 
offices have been a serious obstacle to improving the management of 
these programs. Over the past 5 years, many complaints of discrimination 
have been filed gainst ASCR program managers and officials. In addition, 
some staff have feared retaliation for reporting program and management 
related problems, or for raising questions about management actions. 

USDA’s OIG and GAO have long reported on problems in resolving 
discrimination complaints. USDA's stated policy Is to efficiently respond 
to discrimination complaints, but over the past years it has not done so. 
USDA’s OIG and GAO have together invested heavily in reporting on and 
developing recommendations to overcome USDA’s untimely handling of 
discrimination complaints. In 1999, for example, while we reported that 
USDA had exceeded four target dates for closing backlogs of customers’ 
complaints and three for employees’ complaints, we made 
recommendations to address USDA’s continual management turnover in 
civil rights offices, frequent reorganizations, inadequate staff and 
managerial expertise, and poor working relationships and communication 
within the Office of Civil Rights.'* USDA management agreed with these 
reports and committed to implement our recommendations. 


'’GAO, U.S. Department of Agriculture: Problems Continue to Hinder the. Timely 
Processing of Discrimination Comj^aints, GAO/RCED-99-38 (Washington, D.C.; 
Jan. 29, 1999). 


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However, by 2000, USDA’s OIG stated that it was niaking its seventh 
attempt to provide USDA’s Office of Civil Rights with constructive ways to 
overcome its case processing inefficiencies.'** The OIG also staled that 
officials of the Office of Civil Rights had agreed to a major transformation 
of the system for processing complaints, but, in fact, the office did not 
make any significant changes. The OIG stated that unless the Office of 
Civil Rights provided effective leadership, changed the organizational 
culture, and addressed its customer focus and process engineering, it 
would be questionable whether further complaints of discrimination 
would receive due care. In 2(K^, USDA officials again committed to setting 
and meeting time frames for processing discrimination complaints. In 
2003, we identified the processing of discrimination complaints as a 
significant management challenge for USDA.'' Four years later, in August 
2007, USDA’s OIG designated civil rights as a major management challenge 
at USDA,'* The OIG commented that because of the conditions it had 
found, public confidence in USDA’s upholding of civil rights might be lost. 

In addition, in 2007, USDA’s OIG reported that material weaknesses 
persisted in ASCR’s civil rights control structure and environment for 
processing employees’ discrimination complaints."' The OIG found that 
although USDA’s Office of Civil Rights had reduced the average time for 
processing employees’ complaints, the average exceeded the Equal 
Employment Opportunity Commission’s standard of 270 days. According 
to the OIG, 67 cases took, on average, over 500 days, which the OIG 
considered to be representative of cases in which ASCR had to issue a 
decision on the merits of the complaint. In addition, the OIG reported that: 

• 13 of the 64 case files that the OIG selected to review could not be located 
for a month; one required 6 months to locate; and one had to be recreated; 


‘"USDA Office of Inspector General. Office CivU Rights Status of the lmplemen.iation of 

Recommendations Made in Prior Evaluations of Program Complaints, Audit Report No. 
608014-Hq (Washington, D.C.: Mar. 10, 2007). 

‘'GAO, Major Management CktUlenges and Progiam Risks: Department of Agriculture, 
GAO-03-06 (Washington. D.C.; January 2003). 

"‘USDA Office of Inspector General, Management Challenges (Washington, D.C.; Aug. I, 
2007). USDA's OIG previously identified civil rights as a major management challenge for 
USDA in August 2(^. 

"’USDA Office of Inspector General, Revieui of the U.S. Department of Agriculture’s 
Accountability for Actions Taken on Civil Rights Complaints, Audit Report 
No. 60601-04-IIy (Washington, D.C.: May 14, 2007). 


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• 2 1 of the 64 case ffles had missing documentation; and 

• 1 1 of the 64 cases had incorrect data recorded in ASCR’s database, 
including one case in which the complainant was incorrectly identified as 
white rather than Afncan-American. 

ASCR’s former Director, Office of AcUudication and Compliance, 
responded that there were several causes for these conditions: the Equal 
Employment Opportunity Commission standards were unrealistic, there 
was a substantial backlog of cases, there had been an influx of new cases, 
there were staffing and resource shortages, and individual USDA agencies 
were not meeting their responsibilities. ASCR’s former Director also 
ciainted that these weaknesses in resolving employees' discrimination 
complaints would be addressed in 5 years. However, the OIG observed 
that ASCR did not have an effective plan to get this done. 


ASCR’s Reports on 
Minority Participation 
in Programs Are 
Unreliable and of 
Limited Usefulness 


ASCR has published three annual reports on the participation rate of 
socially disadvantaged farmers and ranchers in USDA programs, which are 
requir^ by section 10708 of the 2002 Farm Bill.^ Over time, these reports 
could help make more transparent the progress made by socially 
disadvant^ed farmers and ranchers in accessing USDA programs. 
Flowever, as USDA discloses in these reports, the data USDA has reported 
are statistically unreliable. In addition, our analysis of the USDA reports 
shows that they do not include basic reference data needed for 
understanding the reports and examining trends. 


The reports are to provide statistical data on the participation of farmers 
and ranchers in USDA programs by race, ethnicity, and gender, and in 
addition, USDA has includ^ descriptions of its success stories in 
providing outreach and assistance to socially disadvantaged farmers and 
ranchers. USDA has stated that through these reports, it intends to make 
clear that it is committed to and accountable for fair and equitable service 
to all customers. However, the statistical data USDA reports on program 


®USDA, Bridges to the Future: 2003 Ann ual Report of the Participat ion of Socially 
Disadvantaged Farmers and Ranchers in USDA Programs, Die Section 10708 Report. 
(Washington, D.C.: December 2004); Bridges to the Future: 200^ Annual Report of the 
Participation of Socially Disadvantaged Farmers and Ranchers in USDA Programs, 'Die 
Section 10708 Report (Washington, D.C.; December 2005); and. Bridges to the Future: 
2005 Annual Report, of the Participaiion of Socially Disadva ntaged Farmers and 
Ranchers in USDA Programs, The Section 10708 Report (Washington, D.C.; June 2007), 


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participation are unreliable. USDA stated that it does not have a uniform 
method of reporting and tabulating race and ethnicity data among its 
component s^encies. More specifically, according to USDA, it does not 
have approval from 0MB to implement standardized data collection of 
demographic information directly from program participants. For 
example, according to USDA, the Cooperative State Research, Education, 
and Extension Service; the Rural Business and Cooperative Service; and 
the Risk Management Agency are not authorized to collect race and 
ethnicity data for 18 programs. USDA reported that only the Farm Service 
Agencies’ farm loan program collects reliable and complete information on 
socially disadvantaged farmers and ranchers. Except for the data of the 
Farm Service Agency, most of USDA’s demographic data are gathered by 
visual observation of the gqiplicants, and USDA states in its repoits that it 
considers visual observation to be unreliable, especially for ethnicity. 
Individual traits, such as ethnicity, may not be readily evident to an 
observer. In addition, for some Farm Service Agency programs, applicants 
who chose not to identify their race were, until 2004, designated as “white 
male.” When taken together, according to USDA, the mixture of data 
available for reporting is statistically unreliable. 

In 2004, to overcome these conditions, ASCR published a notice in the 
Federal Register seeking public comment on its plan to collect additional 
data on race, ethnicity, gender, national origin, and age. While ASCR 
received some public comments, it did not follow through and obtain 
OMB’s approval to collect the data. In a January 2008 briefing document, 
an ASCR work group stated that ASCR does not have the staff or financial 
resources to proceed with this project. On May 8, 2008, ASCR officials said 
that they plan to meet again in the near future to further discuss this 
matter. 

In addition, our analysis of these USDA reports shows that they are of 
limited usefulness because they do not include the basic reference data 
needed for understanding the reports and examining trends. USDA has 
published its demographic data as the percentage of program participants 
by county and state. While observers can track the percentage changes in 
program participation over time, the data are of limited usefulness without 
knowing the actual number of program participants and the census data 
for each county and state. For example, USDA would now report that in a 
particular county, 20 percent of the farm program participants were 
minority farmers and 80 percent were nonminority farmers. Greater 
insight would be provided if USDA also reported that there were 100 
program participants in tbe county — the report reader would then know 
that 20 were minority program participants. Further insight would be 


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provided if USDA reported from census data that in this county, 125 of the 
1,000 farmers were minority farmers. By including census data, USDA 
could also facilitate the observation of population shifts along with 
changes in program participation. Furthermore, USDA’s Web-based tables 
that contain data on program participation do not facilitate analysis. USDA 
publishes its data in about 1,370 separate tables and 146 maps that are not 
searchable files. Because the underlying data are not searchable, readers 
cannot ntake siniple comparisons that would enhance data interpretation. 
If the data were searchable, it could be possible to compare minority 
participation by program, geographic location, and year. 

Finally, a section of the report includes highlights of 16 USDA agencies’ 
efforts to reach out to minority and socially disadvantaged farmers. While 
these highlights provide useful perspective on agency activities to serve 
socially disadvantaged farmers and ranchers, the information is somewhat 
limited because the many positive agency activities are reported as 
anecdotes, which do not reveal the full extent of USDA agency outreach 
activities. The following examples illustrate USDA’s reporting of its 
outreach efforts for fiscal year 2005. 

• Farm Bill Forums. USDA reported that in anticipation of the 2007 Farm 
Bill, the Office of Outreach assisted with planning and conducting 
“listening sessions” in various locations with minority farmers and 
ranchers. 

• Partners Meetings. USDA reported that a second annual partners meeting 
was held in August 2005. The meeting provided opportunities for more 
than 125 representatives of community-based organizations for farmers 
and ranchers to engage with USDA officials about issues that affect the 
continued well-being of the minority and small farm and ranch community. 

• The Tobacco Buyout Program. USDA reported that a comprehensive 
multimedia campaign was conducted to inform tobacco quota holders and 
farmers of the buyout program, and to encourage them to sign up for the 
buyout program. The Office of Outreach participated in the design of 
communication strategies to help ensure that small and limited-resource 
producers received accurate information about the buyout in a timely 
manner and the office also called attention to the need to promote 
financial investment planning and transitioning to alternative crops. 


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In light of USDA’s history involving significantly controversial issues, 
including allegations of systemic discrimination against USDA customers 
carried out throu^ the design and delivery of USDA programs as well as 
discriminatory treatment of USDA employees, strategic planning is vital 
for providing proactive ASCR leadership. Results-oriented strategic 
planning provides a roadmap that clearly describes what an organization is 
attempting to achieve, and over time, it can serve as a focal point for 
communication with the Congress and the public about what has been 
accomplished. Results-oriented organizations follow three key steps in 
their strategic planning: (1) they define a clear mission and desired 
outcomes, (2) they measure performance to gauge progress, and (3) they 
use performance information for identifying performance gaps and 
decision making to hone the strategic plan. Taken together, ASCR has 
started to develop a re^uits-oriented approach as illustrated in its first 
strategic plan entitled Assistant Secretary for Civil Rights: Strategic 
Plan, Fiscal Years 2005-2010 and its ASCR Priorities for Fiscal Years 
2007 and 2008. The elements of these plans are summarized in appendix 
II. However, ASCR has a long distance to go before its approach and plans 
can be effective. 

ASCR has designed its missions and strategic goal We found that ASCR 
has made progress by describing a compelling mission and strategic goal, 
but has not involved stakeholders, assessed the environment, and aligned 
its activities, core processes, and resources to achieve its mission and 
strategic goal. 

• One of ASCR’s missions is to ensure that USDA is in compliance with civil 
rights laws and regulations. This mission calls for ASCR to process 
employees’ discrimination complaints as required by the Equal 
Employment Opportunity Commission, and to review USDA agencies’ 
implementation of civil rights laws and regulations. 

• ASCR’s second mission is to provide leadership to promote equ^ 
opportunity, equal access, and fair treatment for all USDA employees and 
customers. 

ASCR also has a strategic goal — to ensure USDA provides fair eind 
equitable services to all customers and upholds the civil rights of its 
employees. This two-pmt strategic goal was the basis for the development 
of ASCR’s strategic plan. 

Results-oriented organizations take several steps to effectively implement 
their mission and achieve their desired outcomes. They (1) involve 


ASCR’s Strategic 
Planning Is Limited 
and Does Not Address 
Key Steps Needed to 
Achieve Its Mission 


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stakeholders, (2) ass^s the environment, and (3) align activities, core 
processes, and resources. However, we found that ASCR’s planning heis 
several shortcomings. First, while results-oriented organizations base their 
strategic planning, to a large extent, on the interests and expectations of 
their stakeholders, ASCR’s strategic plan states that ASCR relied on input 
from a variety of internal and external customers in developing its 
strategic plan. However, the plans do not identify who provided input or 
contain a discu^ion of the interests and perspectives of ASCR’s 
stakeholders. For example, while ASCR’s stakeholders are interested in 
assuring the diversity of USDA field office staff to facilitate their 
interaction with minority and underserved farmers, ASCR’s strategic 
planning does not address the diversity of USDA’s field staff. ASCR’s 
external stakeholders said that they have a high degree of interest in 
ASCR’s planning, and several discussed their involvement in ASCR’s 
annual meetings. ASCR refers to its stakeholders as “partners” — which 
include representatives of community-based organizations and minority 
interest groups. These partners have attended ASCR’s annual partners 
meetings and discussed their wide ranging interests in ASCR’s mission. 
However, ASCR’s partners’ interests vary from ASCR’s strategic plan. We 
developed a summary of ASCR’s partners’ interests based on interviews 
with the representatives of a selection of USDA’s partners’ groups, and we 
also considered issues identified in past studies of USDA. For example, 
ASCR’s partners are interested in improvements in (1) USDA’s methods of 
delivering farm programs to facilitate access by underserved producers, 

(2) the county committee system so that they are better represented in 
local decisions, and (3) the diversity of USDA employees who work with 
minority producers. A list of these interests is included in appendix III. 

In response, ASCR’s Director of Outreach stated that some of ASCR’s 
fiscal year 2008 priorities for outreach respond to particular interests of 
ASCR’s partners. The Director referred, for example, to ASCR’s initiatives 
to coordinate and report on USDA-wide outreach activities, to help ensure 
that USDA agencies have formal outreach programs with full-time staff, to 
train outreach coordinators, and to improve ASCR’s annual reporting on 
minority participation in USDA programs. 

Second, by building an environmental assessment into the strategic 
planning process, results-oriented organizations identify external and 
internal factors that can influence the achievement of their long-term 
goals. For example, some infonnation about the civil rights environment 


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as it affects farmers is described in a study of the Mississippi Delta area by 
the U.S. Civil Rights Commission, and in a report on minority mid women 
farmers by USDA’s Elconomic Research Service."’ ASCR’s report does not 
discuss the development or use of such information. An assessment of the 
external environment is especially important because ASCR’s Office of 
Outreach is to provide national leadership and coordination for USDA 
programs and services to ensure equal and timely access for all of USDA’s 
constituents, especially the underserved. As for the internal environment, 
ASCR recognizes that the efforts of various USDA agencies and offices 
that perform critical functions are necessary for full implementation of 
ASCR’s strategic goal. However, ASCR’s planning does not identify the 
most critical agency functions that relate to ASCR’s strategic goal 
including their culture, man^ement practices, and business processes. 
While this is a significant endeavor, getting a good understanding of these 
facets of USDA operations could help contribute to determining what 
ASCR may need to accomplish and how ASCR could best work with other 
USDA agencies and offices. ASCR’s Director of Outreach reported that her 
office is making some progress in developing relationships vdth USDA’s 
agencies in their efforts to improve outreach to minority farmers. 

Third, results-oriented organizations align their activities, core processes, 
and resources to support their mission and desired outcomes. Such 
organizations start by assessing the extent to which their programs and 
activities contribute to meeting their mission and make linkages between 
levels of funding and their anticipated results. ASCR used an 
organizational framework for developing its planning, according to an 
ASCR official, and developed objectives for each of ASCR’s existing 
offices. However, these plans do not reflect consideration of the extent to 
which each of its office’s activities is to contribute to ASCR’s missions. For 
example, one ASCR strategic objective is to strengthen partnerships with 
historically black land-grant universities through scholarships provided by 
USDA, but it is not clear how scholarships bear significantly on ASCR’s 
mission. Moreover, the plans do not make linkages between levels of 
funding and ASCR’s anticipated results — without such a discussion it is 
not possible to determine whether ASCR has the resources needed to 
achieve its strategic goal. 


■'U.S. Civil Rights Comniission, Raciod and fJthnw Tensions in American Communities: 
Poverty, Inequality, and Disirrimination, Volume VII: The Mississippi Delta Report 
(Washin^on, D.C.: Februaiy 2(K)1) Mid U.S. Department of Agriculture, Economic 
Research Service, Minority & Women Farmers in the U.S. (Washington, D.C.; May 1998). 


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ASCR could better measure performance to gauge pivgress. Results- 
oriented organizations establish performance measures that demonstrate 
results, are limited to the vital few performance measures, respond to 
multiple priorities, and link to responsible programs. In addition, they pay 
special attention to issues relating to data collection. Moreover, they have 
to balance the cc^t of collecting data against the need for data that are 
complete, accurate and consistent enough to document performance and 
support decision making at various organizational levels. In this area, 
ASCR’s plans leave room for many forward steps. 

• While ASCR identified its Office of Outreach as having responsibility for 
providing national leadership and coordination for programs and services 
across USDA ^encies to ensure customers have equal and timely access, 
the measures it adopted focus on counting participants at USDA training 
workshops, rather than on the outcome of its outreach efforts on access to 
benefits and services. 

• i^CR’s planning does not link to the plans of USDA agencies or 
department as a whole, and does not discuss the potential for linkages to 
be developed. 

• To measure progress that USDA agencies make in compliance with 
relevant USDA government regulations and laws, ASCR states it will use a 
percentage of agencies in compliance, but had not established the baseline 
and targets. 

ASCR’s plans have an important gap in the area of performance 
measurement, especially in an era of limited resources. They do not 
discuss the kinds of data that USDA agencies collect or analyze that would 
demonstrate progress towards ASCR’s strategic goal. To leverage 
resources, potential sources of data may be USDA’s National Agricultural 
Statistics Service, which conducts the Census of Agriculture, and the 
Economic Research Service, which analyzes and reports on trends in 
agriculture, including social changes. 


^Measuring raci<U discrimination is important to understanding where it occurs, the extent 
of ite impact, and what to do about it. Researchers have recommended that agencies 
explore the use of field studies, such as has been done since the 1970s t o detect racially 
based discrimination in housing. See National Researirh Courted, Nat ional Academy of 
ScAences, MeasuHng Raci^il Discrimination (Washington, D.C.: 2004). 


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ASCR’s planning has not considered the use of performance infoimation 
for identifying performance gaps. Results-oriented organizations — after 
building a performance measurement system — ^put performance data to 
work to identify in their performance, report on that performance, 
and finally use that information to improve their performance to better 
support their missions. However, the data that ASCR now identifies in its 
plans, such as the number of pereons who are aware of USDA programs, 
will contribute relatively little to an understanding of USDA’s performance 
gaps in meeting ASCR’s strategic goal. For example, such data will not 
provide any insight into how well USDA staff work with and assist 
minority and limited-resource customers, whether the programs provide 
for equitable treatment, and how well USDA upholds the civil rights of its 
employees. Also, ASCR will need to work closely with other USDA 
agencies, such as the Farm Service Agency, the Natural Resources 
Conservation Service, Cooperative State Research, Extension, and 
Education Service, and the Rural Development Mission Area, but the 
ASCR plans do not discuss how their data can be used to contribute to 
identifying gaps in USDA’s performance. Nevertheless, ASCR officials said 
that they have taken steps in this direction through annual reviews of the 
performance of USDA agency heads. Through these reviews, ASCR 
officials said they are making some recommendations for agency change, 
although the USDA agencies are not required to follow those 
recommendations. 


Concluding 

Observations 


USDA has been addressing allegations of discrimination for decades. One 
lawsuit has cost taxpayers nearly a billion dollars in payouts to date, and 
several other groups are seeking redress for similar Sieged discrimination. 
While ASCR’s policy is to fairly and efficiently respond to complaints of 
discrimination, its efforts to establish the management sj^tem necessary 
to implement the policy have fallen far short. For example, both we and 
USDA’s DIG have observed that ASCR does not have oversight and control 
over its inventory of discrimination complaints — controls that are vital to 
effective management. Despite the numerous past efforts to provide this 
office with constructive analysis, including recommendations to set 
timeframes for resolving complaints from beginning to end, significant 
management deficiencies remain. Such resistance to improve its 
management system calls into question USDA’s commitment to more 
efficiently and effectively address discrimination complaints both within 
the department and in its programs. 


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Mr. Chairman, this concludes my prepared statement. I would be pleased 
to respond to any questions that you or other Members of the 
Subcommittee may have. 


Contact and Staff 
Acknowledgments 


Contact points for our Offices of Congressional Relations and Public 
Affairs may be found on the last page of this statement. For further 
information about this testimony, please contact Lisa Shames, Director, 
Natural Resources and Environment at (202) 512-3841 or 
shamesl@gao.gov. Key contributors to this statement were Charles M. 
Adams, Kevin Bray, Robert Cramer, Nancy Crothers, Richard Egan, 
Ronald Fecso, Bart Fischer, Cardell Johnson, Elizabeth Johnston, Karen 
Keegan, Kerry Lipsitz, Nhi Nguyen, Andrew O’Connell, Terry Richardson, 
and Susan Sawtelle. 


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Appendix I: Scope and Methodology 


During this performance audit, we reviewed relevant reports prepared by 
the U.S. Department of Agriculture (USDA), USDA’s Office of Inspector 
General (OIG), the U.S. Civil Rights Commi^ion, the U.S. Equal 
Employment Opportunity Commission, and GAO, among others. We also 
conducted over 50 interviews with officials and staff of USDA’s Office of 
the Assistant Secretary for Civil Rights (ASCR); over 65 interviews with 
staff of USDA’s Fm-m Service Agency, Natural Resources Conservation 
Service, Rural Development Mission Area, Cooperative State Research, 
Extension, and Education Service, the National Agricultural Statistical 
Service, and USDA field offices in California, Florida, North Carolina, 
Texas, and Washington; 20 interviews with USDA stakeholder groups, 
including The Rural Coalition, United Farmers USA, the Federation of 
Southern Cooperatives, South East Asian American Farmers Association, 
the Intertribal Agricultural Council, the National Tribal Development 
Association, the Hispanic Farmers and Ranchers of America, the National 
Black Farmers Association, National Hmong American Farmers, and the 
Coalition of USDA Minority Employees; and three interviews with officials 
of the U.S. Commission on Civil Rights and the U.S. Equal Employment 
Opportunity Commission. In addition, we considered GAO and the Office 
of Management and Budget’s (0MB) guidance on strategic planning and 
performance.' 

Unlike our prior reviews of USDA civil rights activities when we readily 
obtained access to records that were necessary for our work, in this case 
our efforts were impeded by delays in obtaining records. We made 
repeated requests for USDA records — including requests directly to the 
Assistant Secretary for Civil Rights and the Deputy Secretary. These 
requests concerned records relating to ASCR’s priorities, ASCR’s strategic 
plan, ASCR civil rights related performance assessments of agency heads, 
correspondence between ASCR and USDA’s Office of General Counsel, 
unresolved discrimination complaints, outreach, ASCR office budgets, and 
USDA’s request for 0MB approval to collect data needed for reporting on 
minority farmer participation in USDA programs, among others. In 
January 2008, we requested the Deputy Secretary’s cooperation and 
assistance in arranging for access to USDA records, and we subsequently 
received many, but not all, of the records we sought. Nevertheless, the 
records we received were sufficient for our work to meet generally 
accepted government auditing standards. These standards require that we 


'GAO, Executive Guide: Effeclivety Implementing the Government Performance and 
Results Act, GAO/GGD~96 - 1 18 (Washington, D.C. : June 1996). 


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Appendix I; Scope and Methodology 


plan and perforai the audit to obtain sufficient, appropriate evidence to 
provide a reasonable basis for our findings and conclusions based on our 
audit objectives. We believe the evidence obtained provides a reasonable 
basis for our Hudings and conclusions based on our audit objectives. 

Furthermore, starting in January 2008, several USDA employees contacted 
us with certain all^ations pertinent to our work, such as the possible 
destruction of records and mampulation of discrimination complaint data 
related to GAO’s engagement. Consequently, we and USDA’s OIG 
conducted a number of additional interviews with agency staff. Based on 
the interviews we conducted, we learned of additional deficiencies in the 
handling of discrimination complmnts, among other things, but did not 
find evidence that our work had been purposely undermined. Also, several 
allegations not directly related to our work came to our attention that we 
A\i!l refer to USDA’s OIG and the Department of Justice for further 
investigation. 


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Appendix II; USDA ASCR Initiatives, and 
Strategic and Priority Plans 


Table 4: ASCR Initiatives for Fiscal Year 2004 

Challenges 

initiatives/Accomplishments 

Status as of 
Dec. 2007 

OrganizatkMi 

Consolidated USDA offices with civil rights focus into 
ASCR 

Complete 


Staff were temporarily assigned to address 
discrimination complaints 

Complete 

Systems 

Develop a professional system for managing 
discrimination complaints 

On-going 

Procedural 

Regulations are being drafted to address the relationship 
between USDA's Office of General Counsel and ASCR’s 
Office of Adjudication and Compliance 

On-going 

Operational 

Created a unit to handle incoming phone calls for ASCR 

Complete 


Reduced backlogs of customer and employee 
discrimination complaints 

Complete 


USDA's alternative dispute resolution policy was 
amended in April 2006 to enhance the use of alternative 
dispute resolution 

Complete 


Conduct a public awareness campaign— several public 
forums and "listening sessions" have been held to 
discuss partnerships, the Minority Farm Registry, the 
Notice of Farm Loan Application Receipts, and the next 
Farm Bill 

On-going 

Accountability 

Prevent program complaints— ASCR has convened 
three Partners Meetings with community based 
organizations and groups representing minority and 
limited resource farmers to address concerns about 
access to farm programs 

On-going 


Prevent employee complaints — training for managers on 
equal employment opportunity is mandatory, and 
employee development programs are being 
implemented 

On-going 


Implement the T'lo Fear Act”— Public Law 1 07*1 74 
requires federal agencies to be held accountable for 
violations of anti-discrimination laws— USDA’s quarterly 
reports are being posted on time, and ail employees 
have received training 

Compiete 


ASCR completed an accountability policy for USDA— 
USDA's Office of Human Resources will ensure that all 
USDA managers are held accountable for discriminatory 
actions 

Complete 


An annual civil rights conference has been established 

Complete 


Source USDA ASCR br«bng document as oit4ove>rtber 2007 


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Appendix II: liSOA ASCS Initiatives, and 
Strategic and Priority Plans 


Table 5: ASCR Strategic Objectives for Fiscal Years 2005 through 2010 


Objective 

Selected Key Performance Indicator for 
2010 

Strengthen partnerships between USDA 
and 1 890 Community (historically black 
land-grant institutions). 

increase student scholarships provided by 
USDA from 25 to 33. 

Strengthen partnerships between USDA 
and 1994 land-grant institutions (Native 
American tribal coileges). 

Increase student scholarships provided by 
USDA from 5 to 9 by 2010. 

Enhance the Office of the Secretary and 
D^artmental Office employees’ 
knowledge of the fairness, neutrality, and 
confidentiality of alternative dispute 
resolution (ADR) usage. 

Increase the knowledge of employees 
familiar with alternative dispute resolution 
from 1 00 to 950. 

Ensure USDA agencies and offices are in 
compliance with USDA regulations and 
government-wide ADR laws and 
regulations. 

Percentage of agencies in compliance- 
baseline and targets to be determined. 

Achieve an efficient USDA-wide outreach 
program for all customers. 

Numbers of socially and economically 
disadvantaged persons who received 
training for the first time— baseline and 
targets to be determined. 

Create and strengthen partnerships with 
community and faith-based organizations, 
corporations, foundations, educational 
institutions and other targeted 
communities to build coalitions for USDA 
programs and opportunities. 

Increase number of partnerships and 
coalitions from 10 to 50. 

increase the awareness of USDA 
programs and opportunities for the 
socially and economically disadvantaged 
persons and also under-represented 
persons. 

Increase number of individuals aware of 
participation requirements from 100,000 to 
160,000. 

Develop and implement an efficient 
complaint process that adheres to civil 
rights laws and regulations. 

increase the number of cases processed 
within regulatory timeframe from 40 to 100 
percent tor employee complaints and from 

1 6 to 1 00 percent for customer complaints. 

Ensure USDA agencies and offices are in 
compliance with EEO laws. 

Percentage of USDA agencies brought into 
compliance — baseline and targets to be 
determined. 

Meet EEOC standards for a Model EEO 
Program. 

increase percentage of EEOC indicators that 
are met from 33 to 1 00 percent by 2009. 

SoiBce USDA 


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Appendix II: USDA.^CR Initiatives, and 
Strate^c end Priority Plans 


Table 6: List of Civil Rights Priorities and Selected Initiatives for Fiscal Y ars 2007 
and 2008 

Diversity 

Fill senior executive position to lead ASCR’s Outreach and 
Diversity Dit^sion 


Add woritplace diversity as a core value 


Develop and conduct mandatory Diversity Awareness Training 
for all supervisors and employees 


Offer training, including a disability training conference and an 
AgLearn training module on sexual orientation 


Establish a diversity forum to foster communication between 

USDA senior management and internal customers of USDA 

Outreach 

Develop and implement a comprehensive USDA-wlde outreach 
plan 


Provide oversight and coordination of minority participation data 


Conduct a joint review with USDA's Agricultural Research 

Service of the Hispanic Serving Institutions National Program 

Conflict Prevention 
and Resolution 

Create an Alternative Dispute Resolution (ADR) video on 
mediation 


Recommend establishing dedicated ADR Director positions in 
USDA agencies 


Conduct a USDA-wide ADR awareness survey 

Continuing Civil 
Rights Initiatives 

Comply with No FEAR Act requirements 

Update civil rights directives, regulations, and policies as needed 


Continue to strive to ensure that Final Agency Decisions meet 
legal sufficiency standards and time requirements 


Convene biennial USDA Civil Rights Conference in 2008 

Communications 
and Public 

Create a strategic marketing campaign focused on ASCR goals 
and civil rights accomplishments by USDA agencies 


Recognize and award internal and external stakeholders for civil 
rights best practices 


Source USDA 


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Appendix III: Interests of Selected USDA 
Stakeholders in Civil Rights Related Matters 
as Identified by GAO in 2007 and 2008 



USDA Programs 

Outr ach Programs 

USDA outreach programs for underserved producers could be much better. 


Systematic data on minority participation in USDA programs are not available. 


The 10708 Report and Minority Farm Register have been ineffective. 


Partnerships with commurwty-based organizations could be better used. 

Program Delivery 

Methods of.USDA program delivery need to better facilitate the participation of underserved producers 
and address their needs. 


USDA could do more to provide assistance in accessing markets and programs. 


USDA could better address cultural and language differences for providing services. 


Some USDA program rules and features hinder participation by underserved producers. 


Some USDA employees have little incentive to work with small and minority producers. 


County offices working with underserved producers continue to lack diversity, and some have poor 
customer service and/or display discriminatory behaviors towards underserved producers. 


USDA lacks a program that addresses farm worker needs. 


There continues to be reports of cases where USDA is not processing loans for underserved 
producers. 


Some Hmong poultry farmers with guaranteed loans facilitated by USDA are experiencing 
foreclosures. 

County System 

The county committee system does rrot well represent minority producers. 


Minority advisors are ineffective because they have no voting power. 


USDA has not done enough to make underserved producers fully aware of county committee 
elections, and underserved producers have difficulties winning elections. 

Investment 

There is a lack of USDA investment in research and extension services that would determine the 
extent of minority needs. 

Census of Agriculture 

The Census of Agriculture needs to better count minority producers, 

Foreclosure 

USDA may continue to be foreclosing on farms l^tonging to producers who are awaiting decisions on 
discrimination complaints. 

USDA Internal Issues 

Authority 

ASCR needs authority to exercise leadership for making changes at USDA. 

Resources 

USDA and ASCR need additional resources to carry out civil rights functions. 

Diversity 

Greater diversity among USDA employees would facilitate USDA’s work with minority producers. 

Access 

Producers must still access services through some USDA employees who discriminated against them. 

Management Structure 

The Office of Adjudication and Compliance needs better management structure and function. 

Backlogs of discrimination complaints need to be addressed. 

Alternative dispute resolution techniques to resolve informally employee complaints should be used 
consistently and documented. 

Civil rights compliance reviews of USDA agencies are behind schedule and should be conducted. 

General Counsel Review 

USDA's Office of General Counsel continues to be involved in complaint cases. 


Source GW Anaiy^crt 16 mterviews wrth USOA stakehokiers and review of 1G report; related to civil rights at USDA 


(360777) 


Page 31 


GAO-08-755T USDA Civil Rights 





139 



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140 


Mr. Towns. Thank you very much. Let me thank all three of you 
for your testimony. 

Let me begin, I guess, by asking the IG, throughout GAO’s inves- 
tigation there were reports that the Department withheld access to 
certain records, instructed employees not to cooperate with the 
GAO, and actually forced GAO’s investigators to leave USDA prem- 
ises when GAO was seeking to interview USDA employees as part 
of its review. 

Because GAO is an independent nonpartisan agency that works 
for Congress, your Department’s denial of access of GAO to records 
and employees also denies Congress’ role in providing effective and 
appropriate oversight. 

Why was GAO told to leave USDA’s offices in February 2008? 
Who made that decision? 

Ms. Fong. I will take a crack at that question, and I would invite 
any information from Ms. Shames, as well. 

We were called by GAO in February, after the situation had 
come to a head, and what we were told by GAO was that they had 
sought to interview USDA employees about some allegations that 
documents may have been shredded improperly or that data may 
have been erroneously changed. At that time, we did not know the 
background on that, but we immediately saw that there was an 
issue. Our sense was that the allegations, if true, would potentially 
indicate criminal conduct, and so we felt very clearly that we had 
jurisdiction within the IG’s office to look into this, so we reached 
out to GAO’s investigative staff and decided that we would work 
this jointly to deal with the concerns that had been articulated by 
USDA’s General Counsel. 

I think the General Counsel had two concerns. One is whether 
GAO’s investigative staff had authority to conduct criminal inves- 
tigations; and, second, whether or not USDA employees were given 
the appropriate advice on their rights and responsibilities. We be- 
lieved that by getting involved ourselves with GAO that we could 
address those concerns on the part of the General Counsel, and at 
the same time accommodate GAO’s need to get access to the infor- 
mation, as well as carry out our responsibility to look into potential 
criminal issues. 

I think we were able to successfully resolve that situation. We 
were able to interview the employees that were involved, and to 
complete the work. 

Ms. Shames. If I might jump in, Mr. Chairman? 

Mr. Towns. Sure. 

Ms. Shames. The bottom line is that in the end GAO was able 
to interview, along with the OIG, all of the USDA employees that 
we felt we needed to talk to to gather more information concerning 
several allegations that we heard concerning obstructing GAO’s 
work, shredding some documents, as well as manipulating some of 
the data. 

In the end, we got full cooperation from USDA. We were able to 
gather sufficient information to either refer some of these allega- 
tions back to the Inspector General or to the Department of Jus- 
tice, and in the end GAO was able to get sufficient information to 
be able to report out on the findings that I gave to you today. 

Mr. Towns. Right. Thank you very much. 



141 


Let me go to you, Ms. McKay. You heard the testimony from Mr. 
Boyd, of course, and Mr. Givens, and you stated that county com- 
mittees played no role in the disbursement of USDA program hene- 
fits. But we have heard time and time again from farmers that are 
discriminated against hy these county hoards when they apply for 
loans. You heard, as indicated, Mr. Givens, Mr. Boyd, and, of 
course, I have talked to others, and there are no minorities on 
these county committees. What role does the county committee 
play? 

Ms. McKay. The county committee does not get involved in ap- 
plications for credit programs. There are other USDA programs 
and benefits that they do get involved in, such as disaster assist- 
ance. They do have a very important role in making sure that local 
farmers have access to USDA programs and services. However, 
there is a misconception that they still play a role in approving ap- 
plications for credit. They do not and have not since 1999. Applica- 
tions for farm loans, operating loans, go directly to the FSA county 
office, not to the county committees. 

Mr. Towns. Now, you indicated that you made some progress. 

Ms. McKay. Yes. 

Mr. Towns. Could you be specifics, because the general feeling 
out there is that nothing is really being done, and they have actu- 
ally lost confidence in you and your Civil Rights Division. They 
have lost confidence in it. You heard some of the comments here 
today. 

Ms. McKay. Yes. 

Mr. Towns. So could you respond to that? 

Ms. McKay. Well, I think that a lot of the comments that were 
made predate my tenure at USDA, and I understand how they feel. 
I would feel the same way. But, respectfully, I think they are not 
looking at what we are trying to do. It is a large ship and it turns 
slowly, and the initiatives that I am working on right now will 
eventually pay off. These problems were years in the making; they 
are not going to go away overnight. 

I think I can do a better job in communicating what we are work- 
ing on, which is why I really appreciate the opportunity to be here 
today to talk about what we are doing. And I do honestly believe 
that it will pay off. 

Mr. Towns. Right. Do you have time tables, aims, objectives, and 
goals? 

Ms. McKay. We do. We have a diversity strategic plan. We have 
an outreach strategic plan. We have strategic plans in place or in 
clearance for our initiatives. 

Mr. Towns. Let me just point out to you, USDA’s recent history 
has included several serious accusations of non-compliance with 
Federal and Civil Rights statutes. As a result of Pigford, USDA 
health as recompensed more than 13,000 Black farmers nearly $1 
billion — that is B as in Boy — in damages for Civil Rights violations. 
Since then, three other class action suits have been filed alleging 
racial or gender discrimination in FSA programs: Garcia v. Glick- 
man on behalf of Hispanic farmers; Keepseigel v. Glickman on be- 
half of American Indians; and Love v. Glickman on behalf of 
women. 



142 


How many USDA employees were terminated or in any way dis- 
ciplined for those more than 13,000 instances of discrimination? 

Ms. McKay. I can’t tell you that. First of all, I was not here then. 
Second, there was no reporting mechanism at the time, at the time 
of Pigford in the 1990’s. As I mentioned in my statement, we do 
now have an accountable policy that requires, whenever there is a 
finding of discrimination, and even sometimes in a settlement, that 
persons who are found to have committed wrongdoing are referred 
to the appropriate H.R. office for disciplinary action. 

Mr. Towns. So do you hear whether anybody was fired? 

Ms. McKay. I have heard, but I don’t think it would be appro- 
priate for me to say here because I don’t have any basis in fact for 
what I am hearing. 

Mr. Towns. I just find it sort of difficult to think about 13,000 
wrongdoings. If it was in private industry, some heads would roll, 
no ifs, ands, and huts about it, and you know that. 

Ms. McKay. I don’t know that they didn’t roll. I just don’t know 
one way or the other. 

Mr. Towns. Well, according to the information that we have, 
they did not roll. Many of the farmers in the first panel pointed out 
discrimination in the administration of programs benefit by FSA. 
Although the details vary from farmer to farmer, the general out- 
lines of the stories remain the same. A minority farmer tries to 
apply for farm operating loan through the FSA county office, well 
in advance of planting season. The FSA county office might claim 
to have no applications — can you imagine that? No applications 
available, and ask the farmer to return later. 

Now, planting is a timely thing that you have to do during a cer- 
tain timeframe, and you can’t plant after a certain date and time 
because of a lot of reasons. And upon returning, the farmer might 
receive an application without any assistance in completing it, and 
then asked repeatedly to correct mistakes or complete oversight in 
the loan application. 

Why wouldn’t somebody give him technical assistance, because 
some of these farmers don’t have a lot of training in terms of their 
educational training, but they know how to farm. 

Ms. McKay. Right. 

Mr. Towns. And they have been doing it all their lives. That is 
all they know. I mean, why wouldn’t technical assistance be avail- 
able to those farmers? 

Ms. McKay. Well, we rely on the community-based organizations 
to provide that kind of local hands-on technical assistance. In addi- 
tion, we have a Center for Minority Farmers at USDA so that if 
someone calls we might be able to assist, but we don’t have the 
staff to be throughout the country assisting farmers to fill out ap- 
plications. We do work with our partners, our community-based 
and faith-based organizations. We train them. We rely upon them 
when we have our partners meeting, which we do regularly. And 
actually they get grants also to provide that kind of technical as- 
sistance. 

Mr. Towns. Another thing they complain about is that when 
they get the loan, if they get it, it is reduce, and then it is not 
enough to be able to go and to pay the vendors and to move for- 
ward. Of course, here they are with not enough, stuck with a loan. 



143 


not being able to plant. How do you expect them to pay it? That 
is the reason why I think technical assistance just would be auto- 
matic, because we know that farmers don’t generally have Ph.Ds. 

Ms. McKay. Right. And also the local FSA office is supposed to 
provide technical assistance, and if they don’t then we need to hear 
about it through the complaint process. 

Mr. Towns. Let me ask this, then. If you have an office or an 
agency that is not complying, what happens to them? If these com- 
plaints come in and the fact that there is no applications in the of- 
fice, and they complain, what generally happens in a case like this? 
Help me. 

Ms. McKay. I don’t understand what you mean what generally 
happens. 

Mr. Towns. There is no repercussion? For instance, if I have an 
agency and I am providing applications and I have no applications, 
and I had no applications last year, and I had no applications when 
I came in, then something should happen to that agency. I mean, 
the person that is providing the service, shouldn’t they be penal- 
ized? What happens to them? 

Ms. McKay. If the case 

Mr. Towns. Because if I say to you that I went and they had no 
application, and then I let you know there is no application, isn’t 
somebody supposed to do something about that? 

Ms. McKay. I would agree with you. I don’t disagree with you. 
And if the case can be proven, then there should be consequences. 

Mr. Towns. Well, let me put it this way: I have been in this busi- 
ness a long time. In fact, I am in my 26th year here in the U.S. 
Congress. I started in this 26 years ago, and I heard the complaints 
26 years ago coming from some names that I hear right here on 
this paper right today. Of course, the complaints were basically 
saying — I can’t hold you responsible for all 26 years, but I can hold 
you responsible for the years that you have been here, because get- 
ting applications does not require a big plan of action and all that; 
it just requires having some papers where they are supposed to be. 
Somebody has to be responsible. In terms of your role as the Sec- 
retary for Civil Rights, I mean, and knowing these complaints 
exist, wouldn’t you find it necessary to make certain that everyone 
has applications that they can give out to people? 

Ms. McKay. Absolutely, but this is the first I am hearing of it. 
I have not received a case with that allegation. 

Mr. Towns. Well, let me just say this. There is a problem, and 
I think you should at least be aware of the fact there is a problem. 

Ms. McKay. If someone brings those facts to me, I will make 
sure they get into the system and are thoroughly vetted and looked 
at. 

Mr. Towns. And also I just wanted to let you know that Pigford 
V. USDA — you know about that one — and then you have these 
other three that are pending. To me, that is a message. That says 
that something has to be straightened out here, because also you 
have Love v. Glickman on behalf of women. These are problems. 

When you talk to people in general, they are not positive at all. 
I just think you need to know that. 

I want to help you. I want to help you. I want to see what we 
can do. Now, I know we talked about the advisory committees, and 



144 


there is very little confidence in that. I understand that the people 
that oversee, once they get their loan they don’t see anything. That 
is a problem. If I am supposed to work with everybody and see that 
everybody is treated fairly, and then I come in and put my applica- 
tion in and you give me my loan and then I am blind from that 
point on, I don’t see anything, that is not the way to go. So we need 
to sort of find a way that makes it possible for people to feel that 
they are being treated fairly and that they are being treated fairly, 
and that the farmer has an opportunity to plant in a timely fash- 
ion. 

If you get the money in December and say that you didn’t get it 
before, what can you plant in December? That is the problem. 

So all these things are what people are saying to me, and I have 
indicated the fact that I started with this 26 years ago. Of course, 
I left it alone because we had people that were working on the Ag- 
riculture Committee and they sort of took it over, but a lot has not 
happened positively since that time. 

So let me put it this way: we are not going to go away. We are 
going to stay on this. I am willing to help you. Maybe you need 
some resources. I don’t know what it is, but I think you need to 
be open and honest with us, because this has to be fixed, because 
if not you are going to have more suits, more suits, more people 
going to lose their farms, and that is not anything you want to 
leave as your legacy, that you were around when X percent lost 
their farms. I don’t think you want that as a legacy. I don’t think 
so. 

Anyway, thank you for your testimony. I thank all of you for the 
work that you are doing. I want you to know that we are going to 
be following up on this. This is not the last time you are hearing 
from me. 

Ms. McKay. Thank you. Chairman. We look forward to working 
with you. 

Mr. Towns. Right. Thank you. Thank you very much. 

On that note, the committee is adjourned. 

[Whereupon, at 6:13 p.m., the subcommittee was adjourned.] 

[Additional information submitted for the hearing record follows:] 



145 


USDA Forest Service 
Chief Abigail Kimbeil 
Yates Building 
4* Floor, NW Wing 
1400 Independence Ave. SW 

Washington, DC 20250 April 21, 2008 

Dear Chief Kimbeil: 

We are writing you this letter to advise you of the egregious civil rights violations 
occurring in the Forest Service in the Region 5, California. We are women who have 
been committed to caring for the land and serving the people for many years, with a 
combined total of over 270 years in service. Our dedication to our jobs and public 
service appears to hold little importance to the management of Region 5. Between us, we 
have endured gender discrimination, racial discrimination, harassment, verbal abuse, 
threats and intimidation, and physical assault and sexual assault. Each of us have been 
retaliated against for reporting the perpetrators’ actions. 

Region Five management’s failure to prevent and eliminate the hostile work environment 
has resulted in numerous complaints. We have observed management employees take 
illegal and underhanded actions to prevent our issues from being brought to light. 
Managers have lied under oath, undermined our jobs, made false allegations us, refused 
to deal with workplace violence, taken disciplinary actions against us, and made our 
workplaces intolerable. 

There have been class action lawsuits filed in Region Five by employees desperate for 
cultural change in the workplace. The Bemardi lawsuit was based on discrimination 
against women in hiring, training and promotion. Region Five was in litigation on that 
lawsuit from approximately 1978 through 1994. Before the Bemardi court oversight 
ended, women filed the Donnelly lawsuit which was based on sexual harassment, hostile 
work environment and retaliation. The Donnelly litigation went from 1995 through 2006. 
This amounts to almost 30 years of continuous court oversight on gender discrimination 
issues. 

The question we ask you today is why after those many years of litigation, consent 
decrees, and policies created to prevent and eliminate discrimination against female 
employees, we are still working in a culture of unequal treatment, verbal and physical 
abuse, and retaliation for reporting it? Will it take another class action lawsuit before the 
Forest Service and Department of Agriculture realize that failure to deal with gender 
discrimination issues is not acceptable? Millions and millions of tax payer dollars were 
wasted on over 25 years of litigation in Region Five with no one ever being held 
accountable. Rampant violations of regulations, law, and public policy are continuing - 
ignored and unchecked. 



146 


As chief of the Forest Service it is your responsibility to make certain your managers 
follow the law and insure your employees work in an environment that is free from 
harassment and discrimination. It is not happening in Region Five. 

Chief Kimball, we know we are not the only employees enduring harassment, 
discrimination and reprisal in Region Five, and have been told that Region Five’s poor 
civil rights practices are a microcosm of the Forest Service. As you can see by the 
signatures on this page, there are women in Region 6 and Region 2 who are also enduring 
discriminatory practices. The situation for all employees treated unfairly and 
unreasonably must change. Women cannot continue to work in an environment that is 
fear-based, exclusive and non-productive. We ask that you personally look into our 
claims, help relieve employees’ anguish, and take steps to change this culture of fear. 
Please take action soon, many good people are suffering. 

Sincerely, 

/s/ Kri.stine Levitoff, R-5 Plumas National Forest 

Is/ Charlotte Wild Jordan, R-5 Sierra National Forest 

Is/ Theresa Farrar, R-5, Plumas National Forest 

Is/ Priscilla Peterson, R-5, Lassen National Forest 

Is/ Barbara Bussey, R-5, Plumas National Forest 

/s/ Cindy Roberts, R-5, Plumas National Forest 

Is! Henrietta Haaziq, R-5, Plumas National Forest 

Is/ Pam Balazer, R-5, Los Padres National Forest 

Is/ Barbara Alvis, R-5, Los Padres National Forest 

Is/ Jade Martinez, R-5, Modoc National Forest (before termination) 

/s/ Kari Moser, R-6 
Is/ Audrey Gemmell, R-6 
Is/ Carolyn Gosse, R-4 
Is/ Genie Ott Mendiola, R-2 



147 


DECLARATION 


I, Audrey Gemmell, hereby declare the following: 

1 . I work for the USD A, Forest Service, Region 6, Rogue Siskiyou 
National Forest. I am a GS-0462-09 Helitack Manager for the Siskiyou 
Rappel Base. It is my job to manage a crew of employees who rappel from a 
helicopter into a fire. I have worked for the USDA, Forest Service for 14 
years. If called as a witness to testify, I could and would competently testify 
to the following based on my own personal knowledge: 

2. I am .a female supervisor of a 16 person male crewmen. Some 
consider Helitack Manager a non-traditional job for a woman. The men on 
my crew have been vocal that they do not want a female manager. 

3. I am supervised by male managers. The managers give preferential 
treatment, training and career opportunities to my male subordinate 
employees at the expense of my career. 

4. Males on my crew have started false rumors that I am having sex with 
another member of the crew. The Siskiyou Rogue National Forest 
management has no evidence that the rumor is true, yet they have disciplined 
me for the ramor. 


1 



148 


5. In 2006, one of my male crew members took his penis out of his 
pants, straddled me while I was sitting in a chair, and waved his penis in my 
face. He said, several times, “You want it? Yeah, this is what you want. 

You want it don’t you.” This same crew member has undermined my 
authority with the crew and with upper level management. 

6. For three years I’ve tried to get my upper level managers to assist me 
with the sexism and the uncontrollable drinking of the crew. They have 
been non-responsive. 

7. In April, 2008, 1 was given a tetter of proposed removal. The 
removal is based on a couple of minor administrative mistakes I made. 

Some of the charges are completely untrue. The proposed removal is not 
proper. Male firefighters on my unit are not disciplined for serious 
misconduct. For example, it is common knowledge that one of the male 
managers came to work intoxicated on a regular basis and could not perform 
his job because of it. He received no discipline. One of my crew members 
came into work intoxicated and passed out. He received no discipline. I am 
treated differently than the men. 

8. I believe the reason I’ve been given a proposed removal is because the 
men on the Rappel Crew do not want a female supervisor/manager and they 
have convinced management that a male would be better for the job. 


2 



149 


9. When an employee’s forest management will not assist with claims of 
harassment and discrimination, the only option is for the employee to file 
and EEO complaint. I never filed an EEO complaint because I have 
witnessed complainants retaliated against. It is a no-win situation. I will 
lose my career and my financial stability if the Rogue Siskiyou National 
Forest is allowed to terminate me for little-to-no cause. 



Signed this date, May 8, 2008. 


Audrey Gemmell 

Rogue Siskiyou National Forest 



150 


DECLARATION 

I, Francis Mangels, hereby declare the following: 

1 . I worked for the USDA, Forest Service from 1 966 to 2007. 1 worked 
in California Region 5, Shasta-Trinity National Forest from 1981 to 2007. I 
was a GS-0486-1 1 Wildlife Biologist. I was forced to retire from the Forest 
Service. If called as a witness to testify, I could and would competently 
testify to the following based on my own personal knowledge: 

2. In 1992, 1 was 45 years old. From 1992 to 2006 I was discriminated 
against based upon my age. Managers commented that they wanted to retire 
me in order to hire a young woman in my place for the affirmative action 
consent decree. 

3. In 1 996, 1 was physically assaulted by a younger male coworker. I 
reported the incident but no observable action or co-worker attitude change 
occurred. 

4. In 1999, 1 was physically assaulted by another male coworker. I 
reported it again but no action or co-worker attitude change occurred. 

5. From 1992 through 2006 1 was sexually harassed by male and female 
employees in my office. I received lewd pornographic pictures and obscene 
jokes on my desk implying that as range officer I was having sex with sheep. 
Attached are copies of three obscene documents on my desk by coworkers. I 


1 



151 


reported these incidents to Shasta-Trinity NF management but no they took 
no action. 

6. In 2006, 1 received a death threat from a coworker. A document of a 
ring-tailed cat was placed on my desk. An employee drew a telescopic sight 
cross-hairs diagram over the cat and wrote in red, “You’re busted.” The 
term is used by hunters to indicate how a high-powered rifle busts open the 
victim. I reported this threat to management but fliey took no action. 

7. Female employees in the office called me vulgar names and used 
profanity at me on a regular basis. I reported it but no change occurred. 

8. In 2005, a coworker placed human fecal matter in my office. I 
reported it but it was repeated three times and management took no action. 
Co-workers publicly laughed at me. 

9. Several times employees made false allegations against me. An 
employee made a false report that I violated the Hatch Act. An employee 
falsely reported that I left the restroom door open and exposed myself. An 
employee falsely accused me of sexual harassment. I was investigated for 
the false allegations and received disciplinary actions. Management would 
not address my complaints of harassment and workplace violence. 


2 



152 


1 0. In 2006, 1 filed a complaint with the Equal Employment Opportunity 
Commission for sexual harassment because management took no action and 
the harassment was causing me physical and emotional harm. 

1 1. After I filed the EEO complaint, Shasta Trinity National Forest 
Supervisor Sharon Heywood, and the Shasta McCloud District Ranger Mike 
Hupp retaliated against me. Ms. Heywood and Mr. Hupp falsely charged me 
with workplace violence and misconduct. They placed me on 
Administrative Leave and denied me office access. Ms. Heywood and Mr. 
Hupp investigated me, involuntarily reassigned me, accused me of poor 
performance, and disciplined me. 

12. I reported the incidents of reprisal to the R5 Regional Forester and the 
Washington Office. No one took action to investigate my claims of reprisal. 
My health suffered and I developed heart problems from the stress. 

13. In 2007 1 entered mediation. My request to stay in the agency and 
work in a different office with a new supervisor was denied. I was offered 
only the choice of retirement and a small sum of compensatory damages that 
did not cover financial losses. I had no choice but to accept the offer or 
suffer serious health risks. The doctors said 1 could die. 

1 4. After retirement I went to the Forest Service office to return 
government property. I was assaulted by the Shasta McCloud District 


3 



153 


Ranger and filed an EEO reprisal complaint. The agency has refused to 
settle this complaint The Forest Service resolving official fell asleep and 
laughed at me several times, indicating incompetence and lack of good faith. 

It will cost the taxpayer thousands of dollars to finther investigate and 
process this reprisal complaint. 

1 5. The Forest Service wasted tax payer money by hiring a contract 
attorney named Gary Gilbert (who was preparing to extend my case and cost 
the tax payers thousands more dollars) when there are numerous USDA 
employed attorneys. The R-5 Associate Regional Forester intervened and 
settled the my case, but poorly. 

15. A method for addressing employee claims of civil rights violations 
outside of the EEO process must be developed to address reprisal. 

I declare imder penalty of perjury, and under the laws of the United States, 

that the foregoing statement is true and correct to the best of my knowledge. 

Signed this date. May 7, 2008 . Ui shU k 

Francis W. Mangels'^ 
Shasta-Trinity National Forest 
(ret.) 


4 



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DECLARATION 


I, Lesa L. Donnelly, hereby declare the following: 

1. I worked for the USDA, Forest Service, Region 5, (California) in 
various administrative positions from 1978 through 2002. In 1995, 1 filed a 
class action lawsuit on behalf of six thousand women in California on the 
basis of sexual harassment, hostile work environment and reprisal. In 1997, 
the lawsuit was certified in District Court as Donnelly v. Glickman and 
resulted in a court ordered Consent Decree that lasted until 2006. 1 am vice 
president of the USDA Coalition of Minority Employees. As a Lay 
Advocate, I have represented federal employees in the Equal Employment 
Opportunity Commission (EEOC) and Merit System Protection Board 
(MSPB) administrative processes for fourteen years. If called as a witness to 
testify, I could and would competently testify to the following based on my 
own personal knowledge: 

2. I currently represent USDA, Forest Service employees in Region 2 
(Colorado), Region 3 (Arizona), Region 4 (Utah), Region 5 (California), 
Region 6 (Oregon), and Region 10 (Alaska). 


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3. The employees I represent are victims of sexual assault, physical 
assault, sexual harassment, gender discrimination, racial discrimination, 
disability discrimination and reprisal. 

4. In each case, I advised Regional and Washington Office agency 
managers of the incidents in an attempt to resolve the issues at the lowest 
level of alternative dispute resolution. USDA management is non- 
responsive to communication attempts. 

5. In 2005, 1 met with Under Secretary Mark Rey to discuss the rape of 
a female firefighter on a Southern California forest. Prior to the rape, the 
young woman had complained of sexual harassment from males on her fire 
crew. Forest Service management did not respond to her complaint. She 
was subsequently raped by a male crew member. Mr. Rey advised me that 
he, and the USDA, Forest Service were not concerned with the incident 
because it was solely a police matter. 

6. In 2005, another female firefighter was sexually assaulted while on 
training in Sacramento, CA. When the Donnelly v. Glickman Settlement 
Monitor spoke to Assistant Secretary for Civil Rights, Vernon Parker about 
the incident, Mr. Parker’s immediate response to her was, “It was not rape 
because there was no penis penetration.” The employee had assaulted her 
with his hand. When the Monitor told Mr. Parker it was sexual assault, he 


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changed the subject and would not discuss it. These callous and insensitive 
attitudes are representative of USD A top management’s lack of concern and 
inhumanity toward victimized employees. These poorly handled situations 
highlight the agency’s failure to address violations of law, regulations and 
policy. 

7. There have been many other sexual harassment incidents, and sexual 
assaults in Region 5. For example, in 2005 and 2006, Kristine Levitoff, a 
Forest Service Emergency Control Center Manager with 17 years of service, 
and who is in charge of dispatching resources for large, complex fires, 
natural disasters, and other emergencies, was sexually assaulted, stalked, 
continually touched, and asked for sex by the Plumas National Forest Fire 
Management Manager. She reported it immediately to her supervisor, but 
the agency took no action. She filed a formal complaint and the Fire 
Management Officer was forced into retirement. Six months later, in 2007, 
the agency tried to rehire the man. Ms. Levitoff filed a complaint on that 
action and in 2008 has been retaliated against in the form of supervisory 
assault, verbal abuse, public humiliation and a 30-day suspension. The 
Regional Office and Washington Office will not take action to stop the 
ongoing harassment and reprisal. Unfortunately, there arc too numerous 
other cases of women being treated similarly and there is not enough time to 


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discuss these situations. Please believe nae, the problem is rampant in 
Region 5 and throughout the Forest Service. 

8. Workplace violence is a serious problem in USDA and USDOI. It is 
particularly problematic in Region 5 of the Forest Service. I have observed 
that Region 5 management often does not follow regulations and policy 
which require immediate investigation and employee safety measures. In 
February, 2008, a white male supervisor on the Plumas National Forest 
stated that he wanted to bring in his gun and shoot the employees he hates. 
He stated that he hated his African American female subordinate more than 
anyone. The woman who reported it and the threatened African American 
employee were fearful for their lives. The District Ranger did not take the 
situation seriously and told the women that he was a decent man and that 
they had nothing to fear. For a period of time the supervisor continued to 
enter the office. Proper safety precautions were never followed. The two 
women have been -retaliated against for reporting the supervisor. 

9. I have observed a pattern and practice by agency managers to 
retaliate against employees who raise claims of harassment, discrimination 
and workplace violence. The retaliation takes the form of shunning and 
isolation; threats and intimidation; investigations; disciplinary actions; 


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negative performance; denial of training; removal of job duties; and 
termination. 

10. The Secretary of Agriculture issued Alternative Dispute Resolution 
directives that require the agencies and mission areas to mediate, and in 
good faith, attempt to resolve employee complaints prior to hearing and 
litigation. If followed, these directives would save the tax payer millions of 
dollars yearly. A large number of complainants are denied mediation. A 
larger number of complaints that are mediated do not settle due to Resolving 
Official bias, ignorance of the process, incompetence, resentment toward 
complainants, retaliation, contract attorneys’ desire to prolong litigation, and 
a widespread belief that complainants are troublemakers that should not be 
rewarded. 

11. Agency managers’ failure to address employee claims results in 
formal complaints. Employees are forced into unwieldy and dysfunctional 
EEO and MSPB systems that do not address or correct the underlying 
problems. The federal government spends billions of dollars fighting 
employees instead of resolving the issues. Agency attorneys prolong the 
EEO process causing unnecessary costs to employees and the government. 
Contract attorneys refuse to settle complaints and purposely prolong the 
EEO process for their own financial gain. 


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12. There is no oversight of agency managers. They consistently fail to 
follow civil rights laws and waste millions of taxpayer dollars in the process. 

1 3. Coalition of Minority Employees president Lawrence Lucas has 
provided the most reasonable and potentially successful recommendations to 
address the USDA civil rights problems. I will emphasize that an 
independent advisory board should be created to address these issues. The 
USDA should be placed into receivership until there is evidence that 
employees’ civil rights will be recognized and the laws will be followed. 

14. I hereby submit for the record employee Declarations that describe 
violations of employee civil rights and a letter to Forest Service Chief 
Abigail Kimball signed by fourteen Forest Service women asking for 
assistance. 

I declare under penalty of perjury, and under the laws of the United States, 
that the foregoing statement is true and correct to the best of my knowledge. 

Signed this date, «, 2008. 

Minority Employees 



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DECLARATION 

I, Priscilla Peterson, hereby declare the following: 

1 . I work for the USD A, Forest Service, Region 5 (California), Lassen 
National Forest. I am a GS-0401-9, Resource Information Specialist. I have 
worked for the USDA, Forest Service for 22 years. I am an Hispanic 
female. If called as a witness to testify, I could and would competently 
testify to the following based on my own personal knowledge; 

2. In 1988 I was hired under the Region 5 Bernardi Consent Decree, a 
court-ordered affirmative action for hiring and promotion of women based 
on a class action lawsuit. I worked as Firefighter and Archaeologist on the 
Plumas National Forest. Many male employees resented women hired under 
Bernardi. They publicly called the court order, “The Cuntsent Decree.” 
From 1988 through 1994, 1 was shunned, isolated, ignored and treated like a 
second class citizen by my male coworkers and male supervisor. I did not 
receive training opportunities or assignments equal to my male co-workers. I 
was ridiculed, called names, and tripped by male co-workers. I was sexually 
harassed by a male staff officer. The staff officer grabbed the buttocks of 
my fourteen year old daughter. When I complained of this and other 
treatment I was termed, “a whiner.” I witnessed many other women endure 


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sexual harassment, humiliations, unequal treatment and retaliation for 
reporting it. 

3. In 1 994, 1 assisted Lesa Donnelly with filing the Donnelly v. 

Glickman class action complaint. I was an original class member. I was 
labeled as a “trouble-maker.” I was retaliated against for my role in the 
lawsuit. I filed an individual EEO complaint based on sexual harassment 
and retaliation. For settlement I moved to the Lassen National Forest, 
Almanor Ranger District in 1999. 

4. Because I was blacklisted as a “Donnelly Trouble-maker” in Region 5 
for my role in Donnelly I was harassed by my new supervisor. I filed a 
retaliation EEO complaint and the 2001 settlement was to move me to the 
Lassen National Forest Supervisor’s Office in a Geographic Information 
System (GIS) position as a Resource Information Specialist. 

5. The GIS position should have been a career opportunity, but it is not. 
I am the only Hispanic and until January 2008, 1 was the only woman in the 
unit. My white male supervisor, Mark Nebel treats me differently than my 
white male coworkers. Mr. Nebel does not provide me training 
opportunities, work assignments, equipment or information as he does for 
my coworkers. Mr. Nebel accuses me of poor performance and ridicules me 
in front of my coworkers, yet I have never received an unsuccessful 


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performance rating. He takes my coworkers on field assignments but directs 
me to stay behind. Mr. Nebel allows my coworkers to work with task groups 
and present training. He has removed me from the task groups I was on prior 
to his arrival and has prevented me from going on the Emergency Incident 
assignments, which I’ve been doing for fifteen years. This has harmed my 
career and my financial status. Forest Supervisor Laurie Tippen and my 
second-line supervisor, Elizabeth Norton always supported Mr. Nebel’s 
actions. 

6. I filed an EEO complaint on Mark Nebel’s discrimination and Region 
5 retaliation. I requested alternative dispute resolution four separate times 
but the agency refused to mediate and forced me into a hearing. The judge 
dismissed my case without allowing a hearing, even though I had witnesses 
willing to testify on my behalf. My due process rights have been violated. 

7. My current status is, 1) I filed a breach of settlement on the 2001 
settlement. It has been almost a year and I’ve had no answer from the 
EEOC; 2) I filed an appeal on the dismissal. It has been eight months and I 
have heard nothing from EEOC; 3) I am preparing to file a new retaliation 
complaint. The EEOC is not held to any time frame or standard for 
processing complaints and appeals. This EEO nightmare for me has no end 
in sight. 


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8. I contacted Regional and Washington Office management for 
assistance to stop the continual harassment and unequal treatment, but there 
has been no response and no help. 

9. As a member of the Bernardi class action and a member of the 
Donnelly class action, I’ve observed Region 5 undergo almost 30 years of 
lawsuits, consent decrees and court ordered oversight on female gender 
discrimination issues. Yet, Region 5 has still not managed to promote 
respect, dignity and equal opportunity for women. The processes that were 
agreed to in the Donnelly Settlement Agreement were only minimally 
followed during the court oversight and are not even considered for use now. 
If R5 management were held to those processes for early intervention, 
alternative dispute resolution, investigation of complaints, a reprisal 
investigation panel, and accountability for offenders, then prevention and 
elimination of the wide-spread discrimination, harassment and retaliation 
could occur. Court oversight did not make it happen. I hope that 
Congressional oversight will make it happen. 

I declare under penalty of perjury, and under the laws of the United States, 
that the foregoing statement is true and correct to the best of my knowledge. 


Signed this date. May 6, 2008. 


Priscilla Peterson 
Lassen National Forest 


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DECLARATION 


I, Kristine Levitoff, hereby declare the following: 

1 . I work for the USDA, Forest Service, Region 5, Plumas National 
Forest. I am a GS-0462-1 1 Emergency Command Center Manager. I 
manage an incident command center that handles forest fires and other 
emergency incidents. I have worked for the USDA, Forest Service for 21 
years. If called as a witness to testify, I could and would competently testify 
to the following based on my own personal knowledge: 

2. In 2005, 1 was sexually assaulted by Plumas National Forest Fire 
Management Officer Michael Condon. In addition to the assault, he made 
numerous attempts to have a sexual relationship with me. I reported this to 
forest management and no action was taken. 

3. In 2006, Mr. Condon started stalking me at my home. When I 
rebuffed Mr. Condon he took performance and disciplinary action against 
me. I reported Mr. Condon to Plumas National Forest Deputy Forest 
Supervisor Rob McWhorter and he threatened me with his attorney. Mr. 
McWhorter has had inappropriate sexual relationships with subordinate 
employees during his career. 


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4. I filed an EEO complaint in 2006 because agency management 
would not stop Mr. Condon’s behavior. My complaints were sustained in an 
investigation and Mr. Condon was forced to retire in 2007. 

5. Approximately six months after his retirement, Plumas National 
Forest Fire Management Officer Allan Setzer attempted to secretly rehire 
Mr. Condon. I filed a complaint on this action. Mr. Setzer was caught lying 
under oath about his actions. No actions were taken against Mr. Setzer. 

6. Since filing the EEO complaint I have been retaliated against. Prior 
to the EEO complaint my eighteen years of performance and conduct were 
exceptional. After filing the complaint Mr. Setzer has charged me with poor 
performance. I have been investigated twice for misconduct. I have been 
given a proposed suspension. 

7. In 2008, Mr. Setzer, in a rage, accosted me in the Forest Service 
parking. I was frightened and filed an assault report with the Plumas County 
Sheriffs Department. Plumas National Forest refused to investigate my 
claim of workplace violence in violation of USDA regulations. 

8. Despite the availability of USDA employed attorneys, the Forest 
Service hired contract attorney Gary Gilbert to represent the agency against 
me. Mr. Gilbert has made it clear that he is not interested in settling my case 


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prior to court. I believe he is prolonging the case for his own financial 
interest. 

9. Allan Setzer has continued to yell at me and publicly humiliate me in 
front of my subordinate employees. His actions have created an 
environment in which my employees do not respect me. 

10. I tried on several occasions to get Regional Forester Randy Moore, 
Forest Service Chief Abigail Kimball, and USDA Secretary Ed Shafer to 
stop the continued harassment from Plumas National Forest Management. 
They have not responded to my requests for help. 

1 1 . I have witnessed harassment and discrimination against other female 
employees on the Plumas National Forest. There is no avenue for 
employees to have their civil rights issues addressed in a non-threatening 
and productive manner. 

I declare under penalty of perjury, and under the laws of the United States, 
that the foregoing statement is true and correct to the best of my knowledge. 


Signed this date, April 1 1, 2008 . 




Kristine Levitoff ^ 
Plumas National Forest 


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